SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT & ABDELNOUR
[2014] FamCA 1111
•30 October 2014
FAMILY COURT OF AUSTRALIA
| SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT & ABDELNOUR | [2014] FamCA 1111 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – LEAVE TO AMEND APPLICATION – Where the applicant applied for leave to amend its application in respect of the date of wrongful removal after the hearing had concluded – Where the applicant submitted this was necessary as it was misled about the respondent’s case until receipt of the respondent’s written submissions after the hearing day – Where there was cross examination of both parties during the hearing – Where the respondent opposed the application to amend on the ground of procedural fairness as she was not able to cross examine the father on issues arising from the proposed amendment – Consideration of issues arising from cross examination in Hague proceedings and the application of the rule in Browne v Dunn (1894) 6 R 67 (HL) – Where the amendment requested was reasonable given the extremely complex set of facts – Where the costs incurred and time spent by further cross examination are likely to be extensive –Where both parties knew the other’s case and had the opportunity to respond through documentary evidence – Where there was extensive affidavit evidence addressing the relevant issues – Leave to amend the application granted. FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – CONSENT – DECEIT – DISCRETION TO ORDER RETURN –– Where the father concedes he consented to the removal of the child from France but asserts that his consent was provided for the removal of the child to the United Kingdom and not to Australia – Where the father alleges his consent was obtained by the deceit of the respondent – Consideration of issues relating to proof of consent – Where the onus is on the respondent to establish the existence of consent to the removal of the child to Australia – Where the standard of proof is on the balance of probabilities – Where the respondent established that the father consented to the removal of the child from France to Australia – Where it was found that the respondent did not deceive the father – Where the Court exercised its discretion not to make a return order – Application dismissed. FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – WRONGFUL REMOVAL AND RETENTION – Where there was an initial wrongful retention of the child in Australia by the respondent – Where the wrongful retention was remedied by the respondent later returning the child to France with the knowledge of the father and in circumstances where the father exercised his rights of custody. |
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 111B
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 1A, 2, 14, 15, 16 29 Hague Convention on Civil Aspects of International Child Abduction 1980 arts 1, 3, 12, 13 |
| Browne v Dunn (1894) 6 R 67 (HL) Department of Community Services and Frampton (2007) FLC 93-340 Director-General, Department of Child Safety v S (2005) FLC 93-249 In the marriage of R and SS Hanbury-Brown (1995) 20 Fam LR 334 Kilah & Director-General, Department of Community Services (2008) FLC 93-373 Gazi & Gazi (1993) FLC 92-341 Green and Kwiatek (1982) FLC 91-259 Johnson & Page (2007) FLC 93-344 MW v Director-General, Dept of Community Services (2008) 39 Fam LR 1 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Palmer v Dolman [2005] NSWCA 361 RCL and APBL [2012] NZHC 1292 Re B (A Minor)(Abduction) (1994) 2 FLR 249 Re C (Abduction: Consent) [1996] 1 FLR 414 Re H; Re S. (Abduction: Custody Rights) [1991] 2 AC 476 Re K (Abduction: Consent) [1997] 2 FLR 212 Re S. (Child Abduction: Delay) [1998] 1 FLR 651 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 State Central Authority & Cumming (No 2) [2011] FamCA 666 State Central Authority & Young [2012] FamCA 563 Wenceslas & The Department of Community Services (2007) FLC 93-321 |
WK v SR (1997) 22 Fam LR 592
| APPLICANT: | Secretary, Attorney-General’s Department |
| RESPONDENT: | Ms Abdelnour |
| FILE NUMBER: | SYC | 1564 | of | 2014 |
| DATE DELIVERED: | 30 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 6 June 2014 and 12 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hartstein |
| SOLICITOR FOR THE APPLICANT: | Legal Services Unit, Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
Orders
The applicant is permitted to amend the application filed on 18 March 2014 (and thereafter amended) (“the Application”) as sought in the application made to the Court on 12 August 2014.
The Application is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Attorney-General’s Department & Abdelnour has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1564/2014
| Secretary, Attorney-General’s Department |
Applicant
And
| Ms Abdelnour |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings brought through the Central Authority by its delegate the Secretary, Attorney-General’s department (“the applicant”) against Ms Abdelnour (“the respondent”). The action is brought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), which implement the provisions of the Hague Convention on Civil Aspects of International Child Abduction 1980 (“the Convention”) into domestic law. The applicant seeks an order for the return of the child D, born in September 2012 (“the child”) to France.
In opening the case for the applicant, counsel made an oral application to amend the application to include the ground of wrongful retention in Australia on 4 April 2013. The ground of wrongful retention on 26 December 2013, as had been originally stated, was not pursued and was deleted from the amended application ultimately relied upon. That amendment was not opposed and I made an order granting the applicant leave to amend the application as sought.
The application, as originally filed, was opposed by the respondent on three grounds set out in the Answer and Cross-Application filed 2 April 2014.
a)The application is out of time pursuant to Article 12 of the Convention;
b)The child left France permanently on 10 December 2012; and
c)The child was not habitually resident in France at the time he was allegedly retained on 26 December 2013.
Those grounds, although somewhat inelegantly framed, were refined in opening submissions by the respondent’s counsel to the following:
a)The child was not habitually resident in France immediately prior to 4 April 2013;
b)The child was not "wrongfully retained"; and
c)The father of the child acquiesced in the retention of the child in Australia by the respondent.
The last of the amended grounds assumed importance later in the proceeding, as, until the respondent provided written submissions following the day of hearing in court, the applicant did not appreciate this ground arose out of an event on 2 October 2013 when the child was again removed from France by the respondent. As will be seen, the child was returned to France on 30 September 2013, during which time the father exercised time with the child. On 2 October 2013 the father took the respondent and the child to a railway station in Paris from where they departed France. The father consented to the removal of the child from France on that occasion. It is uncontroversial that the departure of the respondent and the child was with the consent of the father Mr L (“the father”). However, the consent is said by the applicant to have been obtained by the deceit of the respondent. It is that issue which is canvassed in these reasons.
The respondent tendered on 6 June 2014 a document which read as follows:
In answer to the amended allegation that the child was wrongfully retained in Australia on 4 April 2013 the respondent says:
1.The child was not retained in Australia.
2.The child was not wrongfully retained in Australia.
3.The child was not habitually resident in France immediately before the alleged wrongful retention.
4.That the father has acquiesced within the meaning of the Regulation such that he has waived any right to immediate return and return should not be ordered.
Somewhat unusually, the father travelled from France to be present at the hearing. Given that circumstance, the respondent sought to cross-examine the father and did so. Perhaps because of that event, or otherwise, the applicant sought to cross-examine the respondent, and did so.
The applicant had provided, shortly before the hearing, a detailed case outline document. The respondent was not able to do the same as, she says, it was unclear to her what date the applicant was alleging was the date of wrongful removal from France or wrongful retention in Australia of the child. As pointed out earlier the applicant was permitted by me, unopposed by the respondent, to amend the date upon which it alleged the child was wrongfully retained “from France”. As a consequence of those facts and also the fact that the evidence in the case did not conclude until late in the day, the respondent sought a short time in which to prepare and provide written submissions. That application was not opposed on the assumption that the applicant would have an opportunity to reply to such submissions in a short time frame. As a consequence I made the following directions at the end of the hearing day.
IT IS ORDERED THAT
1.I grant leave to the applicant to be able to amend the application filed 18 March 2014 so as to state the date of wrongful retention as 4 April 2013.
2.I grant leave to the Central Authority to make an oral application on behalf of the father in respect of the child.
3.I mark as Exhibit “A” a minute of consent order.
4.I make an order pursuant To Exhibit A.
5.I direct that the respondent mother provide her written submissions by close of business Friday 13 June 2014.
6.Direct that the applicant file any written submission in reply by close of business Friday 20 June 2014.
Prior to closing for the day I raised with the respondent the question of whether any conditions would be sought should the Court determine the child should be returned to France. Some exchanges took place and it was agreed between the parties and accepted by the Court, that in the event of an order being made for return of the child to France, the parties would discuss what conditions should be imposed and present any agreed conditions to the Court together with relisting for the purpose of the Court determining any disputed conditions.
The parties provided their written submissions as required by the Court directions set out above. In the submissions provided by the applicant on 20 June 2014 the following appeared.
1. The respondent’s Form 2A states that:
(a) the applicant is out of time pursuant to Article 12 of the
Convention;
(b) The child left France on a permanent basis on 10 December 2012;
(c) The child was not habitually resident in France at the time he
was allegedly retained on 20 December 2013.
2. At the hearing the respondent amended her Form 2A to allege:
(1) The child was not retained in Australia.
(2) The child was not wrongfully retained in Australia.
(3) The child was not habitually resident in France immediately
before the alleged wrongful retention.
(4) That the father has acquiesced within the meaning of the
regulations such that he has waived any right to immediate return
should not be ordered.
3. Although the respondent submitted this amended Form 2A, at no time
did she elaborate on its meaning.
4. The respondent did not file or serve an outline of case document. At no time during the hearing did the respondent indicate that that the contact visit over a weekend in France in September/October 2013 was to be relied on as constituting a significant event. (I will refer to this description of “contact visit” later).
5. Had the respondent indicated her position prior to the hearing (as
required in a Form 2A and outline of case) or even at the hearing, the
Applicant would have amended the application to plead, in the
alternative, that the removal from France by the mother on 2 October
2013 was a wrongful removal, because she obtained the father’s
consent to the removal of the child to England by deceit, having
previously informed him that she intended to live with the child in
England.
(bold emphasis added)
In response to that submission I had my associate send to each party the following email:
…
Good Afternoon,
His Honour has asked me to write to the parties in relation to the submissions in reply by the Applicant. In those submissions, at paragraph 5, the Applicant intimates that the Application requires some amendment in light of the Respondent's position, of which the Applicant says they were not aware until the provision of the Respondent's submissions.
His Honour would like to know what the parties' position is in relation to reopening the matter so that the Applicant may amend the Application.
Regards,
…
Associate to the Hon. Justice Le Poer Trench
Family Court of AustraliaArising from the responses I caused the matter to be relisted on 12 August 2014 (the first available date to the Court and all parties). On that day the applicant sought leave to amend the application as forecast in paragraph 5 of the submission as above set out. Leave to re-open and amend the application was opposed by the respondent. Argument was then provided by each party relevant to that application. The applicant provided the Court with a marked up copy of the amended application to determine, should leave be granted.
The proposed amended Application included the following additional paragraph under the heading “Details concerning the Child” on page 4.
Further, the child was wrongfully removed from France on 2 October 2013 as the father’s consent to the removal was obtained by the deceit of the mother in her continuing to assert that she intended to live with the child in England.
The proposed amended application also included the following further paragraph on page 7:
The mother and child returned to France to allow the father to have contact with the child and for the mother to pack up her belongings. The father consented to the child leaving France with the mother based on the mother’s continuing assertions that she intended to live in England with the child.
The respondent opposed the application to amend principally because of the following stated reasons:
·That the hearing had concluded and the applicant should not now be permitted to change the fundamental character of the case which was run.
·That as the applicant was not conducting a case that asserted a wrongful removal from France on 2 October 2013 it was unnecessary to put to the father in cross-examination that on 2 October 2013 when he consented to the child leaving France he knew, or ought to have known, that the mother would take the child to Australia to live after a short work related stay in London.
·The applicant has stated in submissions that if it is permitted to amend the application as requested, it will rely upon the failure of the respondent to put to the father in cross-examination that he knew or ought to have known on 2 October 2013, when he consented to the child being removed from France, that the mother would take the child to live in Australia after a short stay in London.
This objection really raised the difficulty of requiring the father to return to Australia for further cross-examination (or otherwise be available by visual electronic means) if leave to amend was granted as sought by the applicant. The proposed amendment also raised the prospect of considerable delay in concluding the hearing. Both those possibilities, particularly where linked to the availability of the parties, their lawyers and the Court, would clearly have given rise to the incurring of greater cost by the respondent, the father and the applicant. It would also add to the delay in determining the case.
Should the applicant be granted leave to amend?
The applicant submits it was misled about the case the respondent was proposing to conduct until the written submissions were provided after the hearing day. The respondent claimed she did not know what case she was to meet because the applicant had forecast seeking to amend the date of wrongful removal or retention shortly before the hearing day. It will be recalled that I granted the applicant leave to amend the application to allege a wrongful retention of the child in Australia on 4 April 2013.
The applicant submits the proceedings are summary in nature and therefore there is ample ability for the Court to permit the amendment.
When the respondent challenged the procedural fairness which would operate against the interest of the respondent (should the leave to amend be granted) because no cross-examination could be conducted of the father, on that issue, the applicant made the following submission.
The applicant submits that if permitted to reopen to rely on the wrongful removal from France on 2 October 2013. the evidence to support the case is already before the Court from the applicant’s side. The applicant submits there is evidence from the respondent before the Court about the same event.
In a real sense each party suffers the same detriment in that neither has had the opportunity to conduct cross-examination on a matter which is now realised by the applicant (it appears it was within the understanding of the respondent) to be a real and significant issue.
The applicant says there is no evidence that a clear and concise discussion took place between the parents of the child where it can be seen that on or about the point of departure from France on 2 October 2013 the respondent made it quite clear to the father that she would be living in England for a short period of time and then she would be returning to Australia (at least in the longer term) where she would be resident.
The applicant says in submission made orally on 12 August 2014 that the Court needs to look at the circumstances of each alleged wrongful removal or wrongful retention. The applicant says that in this case “the father consented to the child being brought back (moved) from Australia to England (rather than being returned to France) on the basis that he could have contact with the child if the child were in England, but he can’t, conveniently or regularly, if the child is in Australia.”
The respondent said in submissions, made orally on 12 August 2014, that her submissions really address the consequences to the applicant’s case claiming wrongful retention of the child in Australia on 4 April 2013, the return to France by the respondent and child on 29 (or 30) September 2013, the exercise of parental rights by the father in France at that time and the delivery of the respondent and the child to the point of departure from France in the knowledge that they would be departing permanently (i.e. changing habitual residence from France) on 2 October 2013.
As a consequence of the above circumstance the respondent says it would be unfair to allow the applicant to amend the application as it seeks.
In further oral submission the applicant referred to some evidence which was drawn to my attention, namely the fact that the father delivered a significant amount of effects to the respondent in London on 19 October 2013. The applicant says it was not until 12 November 2013 that the respondent told the father she would be moving to Australia. The applicant says it was in response to that statement that the father commenced the Hague case in the United Kingdom.
In discussion with the respondent on 12 August 2014 I said to counsel for the respondent:
Mr Harper, the only downside for your client of allowing this further amendment is that the applicant is able to say “Well, you didn’t put to the father that he was consenting to the removal of the child to Australia on 2 October 2013.” Is that it? Otherwise, all the evidence to support your client’s case is there (before the Court)?
Counsel for the respondent replied “That’s right your Honour.”
In her final submission on 12 August 2014 counsel for the applicant said:
… As a model litigant I would say to your Honour …in circumstances where this is a Hague Convention proceeding, it is a summary proceeding, it should be dealt with quickly. Your Honour does not need cross-examination on every issue. Your Honour can deal with the evidence as you think fit and that includes your honour accepting one witness or another.
This circumstance raises the question of how summary proceedings are to be conducted by the Court and in particular how proceedings under the Regulations can be conducted.
The nature of Hague Proceedings
Regulation 14 of the Regulations sets out that the responsible Central Authority may apply to the Court for various orders where a child is removed from a Convention country to, or retained in, Australia.
Regulation 15(2) provides that, in relation to orders made under Reg 14:
A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows.
Regulation 29 of the Regulations sets out the evidentiary provisions which apply in court proceedings brought by the Central Authority pursuant to Regulation 14 (for the return of a child from Australia), Regulation 19A (for the discharge of a return order) or Regulation 25 (for access to a child in Australia). Subsection (3) provides that:
An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross-examination.
Prior to the decision of the High Court in MW v Director-General, Dept of Community Services (2008) 39 Fam LR 1 (“MW v Director-General”), the cross examination of deponents of affidavits in proceedings pursuant to the Regulations was rare and was often considered to be inappropriate due to the nature and purpose of such proceedings. In Gazi & Gazi (1993) FLC 92-341 (“Gazi”), their Honours Ellis, Nygh and Ross-Jones JJ stated at 79,623:
The primary purpose of the Convention, the relevant Legislation and Regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of residence of children who are wrongly removed or retained in another country in breach of rights of custody or access … Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination on deponents of affidavits would not be appropriate.
However, it was acknowledged in Gazi and reiterated by the High Court in MW v Director-General that cross examination may be appropriate in some circumstances, for example, where there are deficiencies in the affidavit evidence. As stated by Honours Gummow, Heydon and Crennan JJ:
44. The deficiencies in the appellant's affidavit evidence would not have been left for textual analysis had one of several courses been followed. Upon application, or at the initiative of the Family Court itself, the proceedings may have been adjourned for the prompt provision of more adequate affidavit evidence. Leave may have been sought by the Authority for the cross-examination of the appellant
The High Court in MW v Director-General warned against the inadequate disposition of these applications due to considerations of expediency (bold emphasis added):
[46] Cross-examination in interlocutory applications generally is not to be encouraged. But an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in Re M (children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over 2 days.
[47] Regulation 15(2) obliged the Family Court, “so far as practicable”, to give to the application by the authority “such priority” as would “ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows”. If within 42 days of its filing the application had not been determined, the authority would have been empowered by reg 15(4) to seek from the registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that “judicial or administrative authorities” act “expeditiously” in these matters and the reference in Art 7 to “the prompt return of children”.
[48] The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
[49] Nevertheless, prompt decision-making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. The references to “summary procedure” and to the dealing with applications on affidavit evidence and “in a summary manner” by the Full Court in In the Marriage of Gazi are apt to mislead. This is particularly true of the statement in that case:
The primary purpose of the Convention, the relevant legislation and Regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody or access [sic] (see Convention, Arts 7 and 11, Family Law (Child Abduction Convention) Regulations, reg 19(1)). Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate.
[50] The danger in reading such remarks too literally (and without regard to the circumstances of each particular case) is apparent in situations such as that considered in the United States by the Court of Appeals for the Third Circuit in Re Application of Adan. An application by the father for the return of his child to Argentina was resisted on the grounds that he had not established his custody rights under the law of Argentina and there was grave risk there of harm to the child. After considering the cursory treatment by the United States District Court of the application, the Court of Appeals said:
Although the Convention seeks to facilitate the prompt return of wrongfully removed children to their country of habitual residence, it does not condone deciding that a child is another country’s problem and dumping her there, and nor do we.
No criticism of that degree is directed to the conduct of the present case, but Adan provides a caution against inadequate, albeit prompt, disposition of return applications.
A balance between expeditious determination and procedural fairness needs to be reached in the special circumstances of this case. I consider the proposal, fairly put by the applicant fulfilling its obligation as a model litigant, will resolve the particular circumstance which has emerged in this case.
I agree that the nature of this proceeding is such that the Court does not need cross-examination on every issue. I can determine the case by considering the evidence which supports each party’s case on the issue and determining which version warrants greater support.
It is important to remember, I think, that the Convention really addresses issues of forum. Nothing would prevent the Courts of Australia or France, should the parenting case be heard by either, from ordering that the child be permitted to live in or travel to either country for the purpose of spending time with the non-residential parent. Clearly that statement is a simplistic conclusion of what would probably be a far more complex set of orders.
Distilling the principle which might be extracted from the above, it follows that proceedings under the Regulation are to be heard summarily to the extent that is able to be achieved consistently with the principles of procedural fairness and further to the extent that it permits the Court to have sufficient evidence and knowledge of relevant facts to be able to determine the proceeding appropriately rather than in a peremptory manner. This will mean that in some cases cross-examination will be permitted and in others it will not be permitted. Where allowed, cross-examination is likely to be limited to particular fact issues.
The question which then arises is whether the rule in Browne v Dunn (1894) 6 R 67 (HL) (“Browne v Dunn”) has any application given the “special” nature of these proceedings as referred to in MW v Director-General. In State Central Authority & Young [2012] FamCA 563, Bennett J found that the rule in Browne v Dunn applied in the circumstances of that case. This proceeding concerned an application for the return of a child to South Africa, brought by the State Central Authority on behalf of the father, who alleged that the mother had wrongfully removed the child to Australia. Her Honour stated at para 107:
For the avoidance of doubt the rule of puttage in Browne v Dunn (1894) 6 R 67 (HL) applies. That is, everything that is sought to be put as part of the respondent's case and case of the independent children's lawyer which should properly be put to the father, must be put. I mention this because oftentimes, on country circuits for instance, counsel agree to dispense with the rule in order to save time, and in the knowledge of that their client/witness remains in court for the duration of the hearing, which is not the case here. In this case, I want the parties to be economical with time but not so economical that the integrity of the process is compromised.
A proceeding which is conducted summarily without cross-examination does not accommodate the application of the rule in Browne and Dunn. In cases where only limited cross-examination occurs as a result of court ruling or party agreement, the application of the rule would be problematic. In order for procedural fairness to prevail in such a circumstance it would seem appropriate for the trial judge to make clear to the parties, before any cross-examination occurs, that the rule in Browne v Dunn will be applied to the particular issue of fact. I note Justice Bennett did just that, as can be seen in the extract from her judgment set out above. I did not make such a statement to the parties in this case. No decision on this issue was sought by either party before the cross-examination took place or thereafter, until the applicant sought to amend the application in the manner now under consideration.
It is implicit in the submission of the applicant that cross-examination did not traverse the removal of the child from France on 2 October 2013 because the respondent had not clearly identified that event as pivotal to the determination of the application during a time when cross-examination could have addressed the issue. The applicant says that case was only detailed in the written submissions provided by the respondent after the evidence had closed and the father had returned to France. I consider that criticism of the conduct of the case by the respondent has validity. I do not consider, however, that the position was contrived by the respondent. I accept that the respondent was entitled to be confused about the case which was being run by the applicant in the lead up to the hearing day. It is to be recalled the applicant sought leave to amend the application at the hearing to change from a case of wrongful removal from France in December 2012 to one of wrongful retention in Australia on 4 April 2013, an amendment which I permitted. That amendment I also consider was reasonable and not caused by any inattention on the part of the applicant, rather the requirement to craft an application out of an extremely complex and unusual set of facts.
Having considered the submissions of the parties and the above statement of applicable law, I propose to grant the applicant leave to amend the application as sought. I do so for the following reasons.
·Each party has had an opportunity to place before the Court their evidence in relation to the relevant events leading up to and including the removal of the child from France on about 2 October 2013.
·No notice was provided to the Court by either party stating that if the leave to amend, sought by the applicant, were granted, either would seek to re-open their case.
·There is no real dispute between the parties as to what occurred at the point of departure from France by the respondent and the child on 2 October 2013.
·The evidence to support each party’s case as to their stated intentions or understandings surrounding that removal is largely contained in written communication between the father and the respondent which has been attached by each to their affidavit evidence.
·There can be no doubt each party knows the other’s case on this point and, if given an opportunity to refute the other’s case in cross-examination, I accept that they would do so with each denying the intention or understanding of the other.
·There is therefore very little and possibly nothing to be usefully gained, for either party or for the Court, by recalling both the father and the respondent to the witness box to allow further cross-examination.
·Given the limited opportunity for cross-examination which has been afforded to the parties and because there is such a wealth of documentary evidence, the weight which can be afforded to the parties’ assertions as to oral communication which is said to have occurred between them on or about 2 October 2013 will largely be determined by the Courts acceptance or otherwise of the credit of each.
·To the extent that each is prevented from cross-examination in relation to conversations which occured between them from 2 October 2013 until 5 December 2013, when the respondent was before the English High Court, this works against the interests of each party.
·The balance of prejudice to each party is clear. The prejudice of not being able to undertake cross-examination works against the applicant because of the need to establish that the consent given by the father on 2 October 2013 was to the removal of the child to England. It works against the respondent to the extent it is necessary to satisfy the Court the father was consenting to the removal of the child to Australia. It could also work against the applicant if it be a requirement for the applicant to establish deceit on the part of the respondent in securing the consent of the father where he thought he was consenting to a removal to England, if that is what occurred. This last matter I will consider later.
·Thus each of the parties will have to rely upon the affidavit evidence, the oral cross examination and any other evidence admitted in the case, to discharge the burdens which may be identified in these reasons.
·The costs likely to be incurred by further cross-examination and the time taken to achieve that are in the circumstances likely to be extensive.
·Cases heard under the Regulations are predominantly (but not exclusively) heard in a summary manner without cross-examination.
·There is, on balance, sufficient evidence (in fact very extensive evidence) in written form to assist the Court in determining the case in a manner which will permit justice to be achieved not withstanding further cross-examination did not take place.
An order will be made permitting the applicant to amend the application as sought.
Having determined that application to amend against the submissions of the respondent, I now need to consider whether any further action needs to be taken to address any prejudice which might flow to the respondent and which might reasonably be addressed without causing undue delay.
Each party has made submissions addressing the consequence to the application for return arising from the events of 2 October 2013. I consider that no further prejudice flows to the respondent if I proceed to determine the application on the evidence and submissions which are now before the Court. Any other action, such as a re-listing, in my view is likely to cause a further delay in determining the application. I propose to move to determine the case on the material currently before the Court, which, as I have already specified, is very extensive.
Unusual Facts
This case has experienced a most unusual pathway to this court. Prior to the application being lodged in this court there had been a hearing of a proceeding under the Convention in England. That proceeding was initiated by the father against the mother (respondent to this case) in the High Court of Justice, Family Division, in the United Kingdom (UK). The father also brought proceedings in the UK under the Children Act 1989 (UK) for orders which were the equivalent of parental responsibility and "live with/spending time with" orders made under the Family Law Act 1975 (Cth.) (“the Act”). On 19 December 2013 the Convention proceeding was discontinued by the High Court of Justice on the ground that it had been brought in the wrong country. The following orders were made:
AND UPON hearing Leading counsel for the Applicant Father and upon hearing counsel for the Respondent Mother
AND UPON(1) The application made by the Father pursuant to the Children Act 1989 and
(2) The application for the return of the child herein to France made by the Father pursuant to the Child Abduction and Custody Act 1985 and 1980 Hague Convention on the Civil Aspects of International Child Abduction
AND FURTHER to the Order of Mr Justice Baker made on 16 December 2013 by which (inter alia) the said proceedings were adjourned to be heard by Mr Justice Mostyn on 20 December 2013
AND UPON the agreement of the parties
(1)To vacate that hearing
(2)That the Mother and the child herein are permitted to travel to Australia on 23 December 2013
(3)That the Father will pay 7,065 Euros as a contribution towards the business class air travel to Australia as aforesaid
(4)That upon the Mother having indicated through her English Solicitors to the Father’s English Solicitors that they (the Father’s English Solicitors) are at liberty to seek confirmation of the availability or non-availability of the cancelled flight ticket of 5 December 2013 including the economy portion thereof and the Qantas air mile points that were or could have been used to pay for that flight, the Father will seek re-imbursement from the Mother in the event that she did not utilise any entitlement from Qantas available to her to reduce the cost of the business class tickets below 7,065 Euros
(5)That the Hague Convention proceedings for the return of the child herein to France will be pursued in Australia, and the aforesaid travel arrangements are strictly without prejudice to the Father’s assertion that the child herein was and continues to be wrongfully retained in Australia within the meaning and terms of Article 3 and 5 of the 1980 Hague convention and does not constitute any form of Consent or Acquiescence by him pursuant to Article 13 (a) or otherwise.
(6)That the Mother will provide to the Father’s English Solicitors an address for service of 1980 Hague Convention proceedings in Australia and will accept service of such proceedings at that address
(7)That the Father will use his best endeavours speedily to pursue the inception and service of such proceedings for an Australian 1980 Hague Convention application to a return of the child herein to France
(8)That the determination of
a.The Father’s Children Act 1989 proceeding in England
b.Any application for costs in the English proceedings
Shall be adjourned to be heard following the determination for the Australian Hague Convention proceedings (unless otherwise agreed)
(9)That the Father shall (without admission of any kind) pay to the Mother the sum of £1,600 within 14 days of the date hereof and by 2 January 2014 as a contribution to the Mother’s accommodation in England, upon provision by the Mother’s Solicitors of invoices demonstrating costs incurred such payment to be also in discharge of all obligations by the Father in respect of his undertaking in respect of accommodation expenses given to His Honour Judge Cahill QC on 5 December 2013
IT IS ORDERED THAT
(1)That (upon the basis that the Father will seek like relief in the Commonwealth of Australia) the 1980 Hague Convention proceedings shall not proceed further in England and Wales and all orders made therein and in the proceedings under the Children Act 1989 shall be discharged.
(2)That in order to permit the Mother’s travel to Australia as provided above the passports of the Mother and the child herein be released by the Tipstaff forthwith to the respondent Mother or to her Solicitors and order for the holding of passports and for a port alert be discharged.
(3)That the proceedings herein under the Children Act 1989 do stand adjourned to be listed before a Judge of the Division (to be listed before Mr Justice Barker if available) on application to the Clerk of the Rules following the determination of the 1980 Hague Convention proceedings in Australia.
(4)That any application for costs in the English proceedings be adjourned to be listed before a judge of the Division (to be listed before Mr Justice Barker if available) on application to the Clerk of the Rules following the determination of the 1980 Hague Convention proceedings in Australia.
(5)That the papers in the English proceedings be released forthwith with permission to disclose the same to the ICACU, the Australian Central Authority, and otherwise in Australian Hague Convention proceedings including to the parties’ respective Australian lawyers.
(6)For the avoidance of doubt the hearing listed on 20 December 2013 be and is vacated.
(7)Costs in relation to the hearing of 16 December 2013 (which were reserved to the vacated hearing on 20 December 2013) and the costs of today’s hearing be and are reserved to be determined as provided at paragraph 4.
Dated this 19th day of December 2013
Documents relied upon.
The applicant relied upon the following documents.
·Application Form 2 filed 18 March 2014 (as thereafter amended).
·Affidavit of Ms H sworn 9 April 2014.
·Affidavit of Ms H sworn 28 May 2014.
The respondent relied upon the following documents.
·Form 2A Answer and Cross-Application filed 2 April 2014.
·Amended grounds of Response by Respondent (Exhibit R1).
Before leaving the description of the documents relied upon by each party in this case there is a matter which needs to be highlighted.
The Application, supporting evidence and the copies of relevant orders included in the applicant’s tender bundle comprise 191 pages. The respondent’s material comprises 100 pages. Folder 1 of annexures to the father’s statement comprises 301 pages of documents. Folder 2 of the annexures to the father’s statement comprises 397 pages of documents. The volume containing the “English Proceeding” documents comprised 294 pages. A total number of pages of material presented to the Court (not including the written submissions of the parties) was 1,283 pages. The applicant helpfully, at my request, flagged the annexures to the father’s statement which it said I had to read. I have had to have regard to a wider category of documents (within the documents placed before the Court) than those identified by the parties as necessary to read, in order to obtain a proper picture of the circumstances in which the father and the respondent found themselves in about September 2013 and thereafter until 5 December 2013.
The evidence which I have relied upon to determine the case is identified in these reasons.
The immensity of the material to consider and the complexity of the case have caused an unusual delay in the Court being able to make orders and deliver reasons.
Background Facts
The applicant claims that the child was wrongfully retained in Australia on 4 April 2013. This was an amended date from that listed in the originally filed application which had alleged the date of wrongful retention in Australia to be 26 December 2013. The date of 26 December 2013 was the date the child arrived in Australia following the orders made by the High Court of Justice in the UK on 19 December 2013, which permitted the mother to remove the child from the UK. Leave to amend the application in the manner referred to was granted on 6 June 2014.
The respondent tendered in court on 6 June 2014 a document which contained an amendment to the Response she wished to rely upon. That amendment was permitted by the Court, there being no objection raised by the applicant. The amendment specified four grounds of defence/opposition to the orders being sought by the applicant. Those grounds are as follows:
·The child was not retained in Australia;
·The child was not wrongfully retained in Australia;
·The child was not habitually resident in France immediately before the alleged wrongful retention; and
·The father has acquiesced, within the meaning of the Regulations, such that he has waived any right to immediate return and return should not be ordered.
In the subject case the father was present in court for the hearing. Cross-examination was sought by the respondent of the father. That cross-examination was permitted and it was conducted. The respondent was also required for cross-examination. The respondent was cross-examined.
Given that the hearing concluded with insufficient time for the Court to hear oral submissions and given the large volume of documents tendered in the hearing, written submissions were ordered. The final submission was received by 20 June 2014, the date by which such submissions were to be provided by the respondent. As stated earlier the applicant’s submissions gave rise to a further listing of the case on 12 August 2014.
The Issues
The respondent identified the issues at the commencement of the hearing as follows:
·Was the child habitually resident in France immediately prior to 4 April 2013?
·Was the child “retained in Australia”?
·If the child was “retained in Australia” was it “wrongful”?
·If there was “wrongful retention” then did the father acquiesce?
As will be seen, the true basis of the respondent’s case was masked by the issues she identified. It emerged in the written submissions of the respondent after the hearing of the oral evidence. The written submissions effectively were that the child could not have been wrongfully retained in Australia because the child had, on about 30 September 2013, been returned to France with the father’s knowledge. The father exercised parental rights to the child in France for some time between 30 September 2013 and 2 October 2013. It was further submitted that on 2 October 2013, the child again was removed from France by the respondent with the consent and knowledge of the father.
The pivotal issue in the case became whether the father had consented to the removal of the child from France to Australia on 2 October 2013. The applicant’s case is that, whilst conceding there was a removal of the child from France on a permanent basis on 2 October 2013, the consent given by the father to that removal was obtained by deceit on the part of the respondent. The applicant alleges that the only consent given by the father was to the removal of the child to England (the UK). It is not alleged that consent was provided explicitly, rather, it is said to be implicit arising from the conduct of the respondent.
Evidence
The applicant’s asserted facts supporting the application are contained in a folder titled “tender bundle”. The tender bundle consists of the application and supporting documentation.
Although the facts asserted to constitute the alleged “wrongful retention” on 4 April 2013 are set out in “dot point form” in the application, it is ultimately the evidence of the father and other acceptable evidence which must establish the applicant’s case. At p 24 of the tender bundle, the statement of the father appears. This is dated 31 January 2014. The statement has been signed by the father and witnessed by an “avocat á la Cour, 29 Boulevarde Raspail – 75007 Paris”. Each of the 67 pages of the statement has apparently been initialled by the father and also by the witness. I will refer only to those parts of the evidence which can be seen as supporting the applicant’s case or which may be relevant to the respondent’s case.
The applicant’s case is stated on page 9 of the outline of case document provided to the Court at the time of the hearing. I here repeat what is there said:
The applicant’s case
1. The father has rights of custody pursuant to the law in France. Article 372 of the French Civil code states that the mother and the father have joint exercise of parental responsibility where they have both acknowledged the child.
2. The child was habitually resident in France until immediately prior to his wrongful retention in Australia on 4 April 2013.
3. Although the father acquiesced in the child’s subsequent move from Australia to England, that does not validate ex post facto the wrongful retention of the child in Australia in April 2013, nor in December 2013. (I note that there was no cited decision to support this statement).
4. France is the appropriate jurisdiction.
5. The father holds a French passport for the child. (Note: It appears common ground that the child also has an Australian passport and was also included on the respondent’s Iranian passport at some time.)
The parties are not married.
The father has full rights of custody in respect of the child as a matter of French law. This is not an issue in the case. The father asserts that the child is habitually resident in France. He supports that assertion with the following facts. He asserts that he has never consented to or acquiesced in the child living permanently in Australia.
THE EVIDENCE OF THE FATHER RELIED UPON BY THE APPLICANT
The facts relied upon by the applicant to establish the deceit are set out in the submission in reply and perhaps in the case outline document provided on the first day of the trial 6 June 2014.
The evidence of the father which supports the application is found in two statements. The first is dated 31 January 2014 and is attached to the application document filed 18 March 2014. The second is attached to an affidavit sworn by Ms H sworn 28 May 2014.
The evidence of the father which might reasonably inform his claim that the consent he gave to the permanent departure from France of the child on about 2 October 2013 was obtained as a result of deceit (in particular by a representation by the respondent that she would be residing permanently in London or the UK) is as follows. In this extract I have had particular (but not exclusive) regard to the “exhibits to the statement of [the father] (vl 1, 2 and 3)” where the documents have been marked for my assistance by the applicant and respondent.
In his statement dated 31 January 2014 the father has a section titled “Part A Main Statement.” He says “I make this statement to set out why I say that (the child) is not habitually resident in the jurisdiction of Australia and nor has he ever been so habitually resident there. I have never consented to or acquiesced in (the child) living permanently in Australia.” The following is a summary of his evidence supporting that assertion.
·The father annexed in volume 1 and 3 of the annexure to his statement, what he says is a “full set of the extensive communications produced for the English proceedings together with others he has since recovered.”
·In his chronology of events the father says “Circa March 2011: (the respondent) moved to London to grow her business there. She left the house that she owns in Sydney (…) and decided to rent it out. At that stage, it is clear to me that she lost her habitual residence in Australia.”
·I note that it seems this concept of the father’s as to how a person loses/changes “habitual residence” has permeated his evidence.
·In November 2011 the relationship between the father and the respondent was renewed. (Other evidence establishes that the parties had cohabited in Sydney, NSW, Australia and then separated when the father was required to move his place of employment from Sydney to Hong Kong.)
·In December 2011 after a holiday together the father wanted to terminate the relationship, however, the respondent found out she was pregnant. The father decided to try to make the relationship work for the sake of the baby. He says the respondent agreed similarly.
·In February 2012 the respondent visited Australia for a few weeks.
·In April 2012 the respondent moved out of her London apartment.
·May 2012 the respondent moved to Paris to live with the father bringing “all her belongings”. The father says “We organised my two bedroom apartment in Paris to be able to live together. She worked at a distance from my place where we organised some office space for her”.
·In June-July 2012 the respondent travelled to Australia for a few weeks for work and for her family litigation.
·In July 2012 the respondent flew back to Paris and in August that year, the father and the respondent holidayed with the father’s children from previous relationships.
·In September 2012 the child was born. The father registered the birth.
·From September to December 2012 the father and the respondent lived in Paris with the child. The father secured social security coverage for the child and the respondent.
·The father assisted the respondent to apply for her “temporary papers” and an appointment for that purpose was made for the respondent to attend on 4 April 2013 with the French immigration authorities.
·On 10 December 2012 the respondent left France on a one way ticket for a planned three month trip to Australia for work and to introduce the child to her family. The father asserts that the one way ticket purchased by the respondent did not indicate she did not intend to return. He asserts that the ticket was paid for by frequent flyer points. To this end, the father says the respondent left approximately 30 boxes, including some items which were related to the child’s care, in his apartment in Paris. (It is common ground the respondent has not returned to France since 10 December 2012 with the exception of the return on 30 September 2014.)
·The father says that it was planned that the respondent would be back for an appointment with immigration authorities (in Paris) on 4 April 2013. He had confirmed the immigration appointment with the respondent via email on 10 December 2012. He emailed the following to the respondent on this date:
Subject: Immigration- meeting taken for papers on 04/04/2013.
Got new birth certificates for [the child] w new spelling. Passport still valid. Wait for me with this new certificate before requesting Aussie ID.
·On 11 December 2012 the respondent had emailed a reply with the subject “Re: Immigration” which contained the words “Well done”.
·In support of his assertion in relation to the respondent’s departure with the child from Paris in December 2012, the father also sets out extracts from what he said were “What’s App” messages exchanged between he and the respondent on the day of her departure from France (10 December 2012) and on the day of her arrival in Australia (11/12 December 2012). The contents of those messages are set out over three pages of the father’s statement and I find there is nothing in that exchange to suggests an intended final separation between the respondent and father and a permanent departure from France.
·The father’s case is that the respondent directed some anger towards him on 18 December 2012 and on 20 December 2012.
·The father annexes a series of emails or text messages passing between him and the respondent on 19 and 20 December 2012. It is clearly evident that there was some conflict between them at this time. In one email dated 20 December 2012, the respondent says to the father “you and me both. And you should not protest when I say I’m moving to London. I never asked you to come to Australia for me.” It is this email that the father seeks to rely upon as the respondent stating an intention to live permanently in London (something which she had not at that time told him she was proposing to do at any particular time). In other evidence the father has expressed surprise when he found out the respondent and the child were in London.
·On 20 December 2012 the father sent an email to the respondent. This appears to be a quite abusive email; however, there is reference to some earlier discussions about the necessity for a three month rental in Sydney. The father writes “I am coming here for you, it is your country. I paid for my ticket. You came here before me. I do not think it is wrong for me to expect you to find some place.” (This seemed to be a reference to the mother finding a place for the father to stay either with her or separately.)
·Between 20 December 2012 and 7 January 2013 the father visited Australia. He stayed in a house with the respondent and other members of her family. There was conflict between the father and the respondent. The relationship between the father and the respondent further deteriorated.
·Between January and March 2013 there was correspondence only between the father and the respondent. On February 18 the father told the respondent he did not want to live with her.
·On 11 March 2013, the respondent asked the father to sign her application for an Australian passport for the child. The father communicated his reluctance to do so. The respondent said it was necessary to have the passport as she needed to obtain a health card for the child. I note that there is evidence in the English proceedings that the respondent held an expired Iranian passport for herself which included the child.
·Between May and August 2013 the respondent refused to provide a date when the father could see the child. The father said “She was also silent or unclear when I queried what her intentions were. I many times wrote: ‘I did not consent for (the child) to be removed permanently to Australia’”.
·On 12 May 2013, the father wrote to the respondent an email which said “I would like to know your intentions as for location. It would be good for all to clarify the situation on all counts. I hate to live in these limbos. It is good for no one. Maybe you know what you are doing and you play with me not disclosing anything at all. I do not know where [the child] lives. He could be living anywhere now and I would not know.” On 15 May 2013, the respondent wrote “Why don’t you buy a bigger place? We can’t come back to that apartment. It is difficult to live there.”
·On 3 June 2013, the father wrote “I also need to know your intentions as for place of living so we can make arrangements on how frequently and in which conditions I will be able to see my son and we can agree contributions too.” In a text message on 17 June 2013 the father wrote “When do you come to Europe and where. That is what I need to see [the child].” On 23 July he wrote “Where is my son?” On 31 July 2013 the father wrote “I need you to cooperate by 1. Providing me basic information on her whereabouts and development and, 2. Cooperate to agree mutually acceptable dates locations and conditions for me to spend time with him. 3. Clarify your place of residence so that we can move forward to stable arrangements.”
·On 4 July 2013, in response to a text the father had sent the respondent about cancelling her French phone, the respondent responded “keep it, I am coming back to Paris in August.”
·On 5 July 2013, the respondent sent the father a text saying “you can see [the child] in London during the same week and give him €5000 less your train ticket. End of story.” This appeared to be in response to her knowledge that the father had made arrangements to travel to Australia in July to see the child.
·The father says that in a response, he told the respondent “I will see him in France and he has to return to France where he was resident before you took him away permanently in an illegal way, so we can decide custody in court.”
·In his letter of 31 July 2013, the father said to the respondent “Also, I would like to repeat that I have never consented that you take [the child] out of France for so long. The initial plan was for you to come back at the latest in early April to France for an immigration meeting to deliver to you an authorisation to you to reside. You did not show up with no explanation.” He finished the letter with “Of course, I do realise our relationship has been over for months, and do not expect that we live together.”
·In August 2013, the respondent took the child to England. The father says he was not informed of this move beforehand. As such, he could not consent to it, however, he concedes he did acquiesce in it subsequently on the basis that although the child would not be in France, the father could see him regularly.
·On 25 August 2013 the father says that the respondent “sent me a text message out of the blue that she was in England”. (I note that elsewhere in his evidence the father says the respondent had told him she would be travelling to London during correspondence in about June or July 2013, where the father was attempting to arrange some time with the child in Australia).
·Despite experiencing difficulty arranging a meeting with the child the father saw him in London on 21 and 22 September 2013.
·In paragraph 28 of his statement the father acknowledges that the respondent had declined to attend mediation with him in September 2013. In paragraph 27 he had described a very unpleasant time he had when visiting the child in London. The unpleasantness was caused by the verbal attacks made on him by the respondent and the respondent’s mother. Further in paragraph 28 he says “her primary concern was that she should come to France and pack up her things in the flat to take to England.” The father wrote to the respondent on 24 September 2013 and asked “are you going back to Australia to live permanently?” Her response was: “I told you I am going back in December and yes permanently.” She also said “I told you I am going back in December and yes permanently. I was going to bring [the child] to Normandy and come to collect my things at the same time but you made such a rush to get rid of our things I have to change plans. Can you not wait until next week I need to make a dr’s appointment for [the child]”. The father replied “if you are moving back to Australia it will be heartbreaking for [the child], he rarely sees his dad.”
·The father says that
Our communication then degenerated into more argument. Despite what she said on 24th September 2013 about intending to go to Australia permanently, by 26th September 2013 she was saying something entirely different. She wrote to me an email that day:
“Hi [father’s first name], as I mentioned to you last Monday, [the child] needs to see his paediatrician in Paris urgently. I would like to come to the apartment. I don’t see why we should not. It’s [the child’s] home, and it’s a good opportunity for the kids to spend time together. I know you keep saying we are separated since you met someone else by of course we are not separated, it is just what you like to think and say to relieve your conscience as you continue to cheat. I never left Paris for good or planned to separate from you. I left all of my and [the child’s] belongings there and pan to come back as you well know. You have always cheated on me it is nothing new. You can’t be surprised that I didn’t want to speak to you while you have been physically cheating on me since you left Australia … I am not sure why, as your partner, I was never given a set of keys to the apartment. Please leave a set of keys with the caretaker for Friday.”
I responded to the effect that what she said did not make sense.
She again wrote to me on 26th September 2013 at 9.53pm:
what about it doesn’t make sense? I went to Australia for work and a few months later you started telling me we are not together anymore and come and collect my things. What is the reason behind this? We both know cheating is like breathing to you. I know you have been seeing other women during my absence and I have every right to be angry about that. Am I the first one to travel for work? Do all people like me get told to stay away from the house as a result of being away? Or is it that you have a pattern of abandoning your partner as soon as they give birth to your child? I did not have [the child] to raise him as a single mother. You promised to build a family with me. You said all this when we met nearly 6 years ago and until 2012 before I got pregnant. For [the child’s] sake I can’t let you do this so easily we made a commitment to be together and raise [the child]. Your sexual whims won’t last just like all the times before. It isn’t your first time to cheat but we can work on it being your last. You need to get therapy on an ongoing basis. What is insane is that you want to lock me out from the home I left behind. There is no good reason why I cannot come back to my life and belongings in Paris.
·The father’s response on 27 September 2013, although not relied on by him, is a relevant document in my opinion. He said “This is insane. Everything you do is insidious and makes no sense. I will come to the doctor’s appointment and help with [the child]. Nothing else. You are nothing to me except [the child’s] mother.” That indication of the father’s view of the respondent is important in assisting the Court to determine what his intentions and understanding was when he consented to the respondent removing the child from France a few days later on 2 October 2013.
·The father met the respondent in Paris on 30 September 2013 when she came to pack some of her belongings which the father would later take to London for her. He says “She insisted on attending my apartment to personally pack her things. Given her volatile nature, I was not prepared for her to be in the apartment alone, and I did not wish for a confrontation.” He also says that
I arranged for a security guard to be present at my apartment and warned her before that I would do that. She came alone in my apartment. The presence of the guard greatly upset her by she kept her nerves quiet that morning. I also saw [the child] on that occasion late that day outside when [the mother] and I left my apartment. We went to the Dr for [the child] and also to a medical center to have him give his blood for an allergy test. Once she had packed almost all of her belongings up as she had requested, I hoped that she would enter into the mediation process, but she stalled it and would not co-operate. Indeed, we never had a mediation session at which we both attended. We continued to be in communication, but at no time did she tell me that her stay in London was temporary. After she packed up her belongings in France and asked me to get them sent to England, she gave me to believe that our relationship was over and that she and I would not be living together in Paris. However, her wish and intention was, I believed, to remain in London.
I note that I do not accept the father’s assertion to the effect that the respondent had abandoned her stated intent to return permanently to Australia in December 2013. I conclude that the father simply wishes to ignore that proposal in order to further his application. Any appreciation of human emotion must lead to an objective conclusion that the words and actions of the father between 24 September and 2 October 2013 would convince the respondent there was no hope for her desire to establish a home for the child which would include both his parents.
·The father does not allege that the child was in France on any other occasion following his leaving to travel to Australia with the respondent in December 2012 shortly following his birth.
·During October 2013 the father says the respondent wrote that she wanted to live with him in Paris. The father says, however, that there were several insulting and aggressive emails or messages from her. She attached conditions to living with the father in France.
·The father sets out other conversations between him and the respondent after the time she left France on 2 October 2013. He does not refer in this statement to her departure from France on 2 October 2013.
·On 19 October 2013 the father moved belongings of the respondent to London. He spent three days with the child on that occasion but was supervised by the respondent. The father said that at no point of the communication about removing the respondent’s possessions from Paris did she say they were going to Australia.
·On 19 or 21 October 2013 the father said that the respondent “told me orally that she intended to stay in London and would try to stay in the same house that she had, despite some uncertainty on her ability to renew her short term lease.”
·In November 2013 the father says that the relationship once again descended into vitriolic communications from the respondent.
·On 28 November 2013 the father wrote to the respondent “you say you will go to Australia but you refuse to tell me (I asked twice) when or if you would be back residing in the UK at all.” (This is an important statement. The father does not identify whenthe respondent had told him in October or November 2013 that she would be returning to Australia. That fact however, is less important than the clear inference from the father’s words that he understood she may not return to the UK. This differs from other evidence of the father which was that his only understanding of the December 2013 proposed trip by the respondent to Australia was for a Christmas family holiday and/or business.)
·The father says the respondent “refused to reply to my queries regarding the dates of a proposed holiday to Australia. I knew she was going to travel in December for what I initially was led to believe was a holiday/business trip. However, towards November end, I grew increasingly worried that she might seek to stay longer or even remain there given her increasingly negative communications with regard to co-parenting [the child] with me.” (I note the father here refers to the respondent travelling to Australia in December for “a holiday/business trip”. I regard this statement as deliberately inaccurate and that is a matter which affects his credit and the weight which can be given to his evidence. I refer to the father’s own evidence contained in relation to the email exchange dated 24 September 2013, where in response to his direct question about her proposed trip to Australia the respondent confirmed she would be returning to Australia permanently in December of that year.)
·On 3 December 2013 the father commenced proceedings in England “with the belief that she had acquired the quality of a habitual resident there and had intended to stay but fearing she might change her mind and make her trip to Australia for an indefinite period.”
·The father says it was not until 5 December 2013 when the respondent spoke in court in England, that he was aware she intended to remain permanently in Australia. The father said he was aware that the respondent proposed taking the child to Australia in December 2013 however he did not know for how long. He said he believed it was a trip for Christmas for a holiday. The father also said the respondent would not tell him when she was returning to England. The father states that he did not know about the dates of the respondent’s UK visa. He was not aware she held return air tickets from London to Sydney for travel on 5 December 2013.
·The father says that eight days later he filed his Hague application for return of the child to France. That Hague application was filed in the United Kingdom and has been referred to earlier in these reasons.
Evidence of the father regarding statements and conversations post 2 October 2013
The applicant relies upon statements and conversations which occurred between the father and the respondent post 2 October 2013 to inform the assertion that the father did not consent to a removal of the child from France to Australia on that day.
The following extracts from the evidence provided to the English Court are considered by me to be important in considering that aspect of the applicant’s case.
a)Email from the respondent to the father dated 25/11/2013. “As I told you when you were in London in October, we are leaving for Australia the first week of December. Therefore; as you well know, none of the dates you mention below are suitable as we will be back in Australia.” (I note this was in response to request by the father to see the child)
b)Email from the father to the respondent mother dated 25/11/2013. “I did not know when exactly you would go as you never replied to the several recent requests I made re your leaving to Australia and when and I do not recall you telling me clearly about your plans.”
c)Statement of the respondent – unsigned – December 2013 – faxed on 12/12/2013 (bold emphasis added):
42. On the day of my arrival, [the father] telephoned me on my Uk telephone number (which I had provided to him) and I told him that [the child] and I were now in London. I never suggested to him that we were living in London on any long term basis. I had hoped that [the father] and I could reconcile (even at this late stage) in which case I was prepared to move to Paris to join him but in the absence of a reconciliation, I was very clear that [the child] and I would be returning to Australia by 5th December 2013.
43. …On 24th September 2013 in response to a message from [the father] asking “Are you going back to Australia to live permanently?” I sent [the father] a text message saying that we were only in England for two more months and therefore he should make the most of our time in Europe. I sent a further message to [the father] on 24th September 2013 saying “I told you, going back in December and yes permanently”. There is now produced and shown to me marked “AA5” copies of these messages…
48. [The father] had provided some clothes for [the child]. On 29th October 2013 I sent [the father] an email saying “These clothes are far too warm for the 45 degree heat of summer we are going back to….”
49. I was shocked that [the father] had started these proceedings in circumstances where it has always been abundantly clear to [the father] that [the child] and I were only going to be in England for months and [the father] had previously accepted the fact that [the child] and I would live in Australia following our relationship breakdown. The emails that [the father] has exhibited to his statement clearly show that I was being transparent with him about the fact that [the child] and I would be returning to Australia in December.
50. Once I had been served with these proceedings I made enquiries as to whether we could continue to stay in the apartment we had been staying in for the last 3 months pending the conclusion of the hearing on 16th December 2013 but I was told that this was not possible.”
54. In summary, my trip to London in August 2013 was only ever temporary. Essentially it was a 3 month business trip. [The father] had no reason to believe that [the child] and I would live in London on a long term basis. [The father] had known since at least September 2013 that [the child] and I would be returning to Australia in December 2013.
d)Statement of the father dated 3/12/2013 (bold emphasis added):
13. I thus proposed some dates for December. The Respondent wrote that she would be leaving early in December to go to Australia. Whilst the implication was that it was a trip to Australia for the Christmas period and that she would return but she simply would not confirm it.
14. [The mother] has not replied to two written requests I made asking about the date of return from Australia to England. She told me on one occasion that her place in [London] is rented but that the lease is short term and she has no certainty on how long she might be able to stay there. Thus it is not clear to me what her plans are going forward. Therefore, I am worried that she may seek to take [the child] to Australia and remain there as a permanent resident.
e)Statement of the father dated 18/12/2013 (bold emphasis added):
Whilst I was aware that the Respondent intended to travel to Australia with [the child] at Christmas this year, I believed it to be for a holiday, but she would not tell me when she would return. Indeed contrary to what she says I did not know her precise date of her planned departure for her trip. I was not aware that she had return tickets, but if she did it was not unusual for her to buy return tickets and to utilise the return element (which she would move).
At no time did I agree to [the child] living in Australia….I did agree to him travelling to Australia with the Respondent for a visit in December 2012.
…I was given to believe that she was living in and was intending to remain living in England. By her actions including renting a home when taken together with her previous connection with England and he business there she gave me to believe that she wanted permanently to re-settle in the UK.
I did not formally consent to [the child] living in the UK, but I accept that I did not raise an objection to it.
she purposely sought to avoid answering the questions I asked of her as to her intended plans. It became my very real fear that she did indeed intend to leave England with our son and not return [the child]..
6. I now believe that the Respondent has deliberately set out to lead me to think that she wanted to live in England, and that she did so in order to string me along and so avoid my seeking [the child’s] immediate return to France.(I note the father says the respondent led him to believe she was proposing to remain in England/London permanently yet he presents no objective evidence of such assertion being made by the respondent. He does present evidence (email 24 September 2013) of a positive and clear statement to the contrary of the position he seeks to present to the Court through the applicant.)
…34…..I wrote to her on 24th September 2013 and asked:
“are you going back to Australia to live permanently”
The response I received was:
“I told you I am going back in December and yes permanently…”
I replied to say that:
“if you are moving back to Australia it will be heartbreaking for [the child], he rarely sees his dad”.
The respondent wrote:
“ I would like to come to the apartment. I don’t see why we should not. It’s [the child’s] home, and it’s a good opportunity for the kids to spend time together. I know you keep saying we are separated since you met someone else but of course we are not separated, it is just what you like to think and say to relieve your conscience as you continue to cheat. I never left Paris for good or planned to separate from you. I left all of my and [the child’s] belongings there and plan to come back as you well know. You have always cheated on me it is nothing new. You can’t be surprised that I didn’t want to speak to you while you were physically cheating on me since you left to to Australia…I am not sure why, as your partner, I was never given a set of keys to the apartment. Please leave a set of keys with the caretaker for Friday.” [VL/1, p. 111]
I responded to the effect that what she said did not make sense.
She again wrote to me on 26 September 2013 at 9.53 pm:
“I did not have [the child] to raise him as a single mother. You promised to build a family with me. You said all this when we met nearly 6 years ago and until 2012 before I got pregnant. For [the child’s] sake I can’t let you do this so easily we made a commitment to be together and raise [the child]. Your sexual whims won’t last just like all the times before. It isn’t your first time to cheat but we can work on it being your last. You need to get therapy on an ongoing basis. What is insane is that you want to lock me out from the home I left behind. There is no good reason why I cannot come back to my life and belongings in Paris.” [VL/1, page 115]
(I note that in answer to this email the father responded in a very clear way to the respondent making statement that he would not live with her and concluding with “you are nothing to me but [the child’s] mother.” That email has been set out earlier in these reasons.)
36. …After she packed up her belongings in France and asked me to get them sent to England, she gave me to believe that she accepted our relationship was over, and that she and I would not be living together in Paris. However, her wish and intention was, I believed, to remain living in London.
37. I travelled to London on the weekend on 27 October 2013…. She told me that she liked the house and the area she was living in. She said she was trying to extend her lease with her landlord because she didn’t want to move out to another property. She told me she was busy with her business and it was easy to take care of….She told me that she wanted to stay in London.
…..On 21 October 2013 I left to return to France. Following the visit, I wrote:
“…Because you did not want to live in Paris and you were frustrated I did not obey you to move to London or elsewhere…Egomaniac…..And now you argue you would always be coming back….The story you tell does not exist…..”She had mentioned in my October visit that she was planning a trip to Australia in December. The Respondent clearly said it in a way to suggest a visit; I assumed for Christmas.
Her email of 25 November 2013 was full of vitriol against me, my ex-wife, and the reasons for the break down in our relationship. Not once did she respond to my enquiry about her plans to return [the child] to London. Nor did she say that she was going back to Australia permanently.
THE EVIDENCE OF THE RESPONDENT
The evidence of the respondent is found in a number of places. The first is in her affidavit in these proceedings affirmed on 9 May 2014. The following is set out therein.
·The respondent is a citizen of both Iran and Australia. She was born in Iran and immigrated to Australia in 1986, obtaining citizenship in 1994.
·The child was born in France in September 2012.
·The respondent is the sole director and shareholder in P Pty Ltd, a company established in Australia in 1998. The company has a warehouse and office in Sydney, NSW. The company has 12 staff in Sydney NSW and 15 overseas in the UK and Iran.
·The business manufactures and sells food products to customers in the Middle East, the UK, China, Hong Kong and the USA.
·The respondent has a policy of engaging customers and suppliers face to face which involves considerable international travel.
·Between 2001 and 2005 the respondent travelled to and from the USA establishing the company’s business in that country.
·Since 2005 the respondent has travelled “regularly” between the UK and Australia. This involved the development of the business. The respondent has spent time in the UK for varying lengths of time since 2005.
·In 2011 the respondent obtained a visa which permitted her to live and work in the UK for a period of three years commencing in March 2011. She obtained accommodation in London on 30 March 2011.
·The respondent has a mother and four adult siblings who live in Sydney. Her father resides in Iran, however, travels to Australia for five months of each year.
·The respondent met the father in Australia in 2007.
·In 2009 the respondent purchased a residential property in Sydney, NSW.
·The father and his then wife and their children lived in Australia for at least some part of 2008.
·After having commenced a relationship with the father in August 2008, the respondent began to reside with him in his accommodation in Australia.
·There was a separation in 2009. The respondent said the relationship was volatile with many break ups and reconciliations.
·In 2009 the father started to work in Hong Kong. The respondent continued to run her company in Australia and they visited each other.
·Once in London in 2011 the respondent and the father re-established their relationship and saw each other frequently. The respondent also made trips to Australia to attend to her business.
·In December 2011 the respondent was pregnant.
·In April 2012 the respondent wrote to the father and told him that she would not move “to Paris where I have no job AND have to travel back and forth to Sydney to keep my business running”. On 3 April 2012 the respondent wrote an email to the father saying “I will be living in London (for now) so you will have to travel to see the baby. And of course I would never move to France unless we were married but I don’t trust you at all to give up my career to marry you”. This detail is contained in a string of hostile emails between the respondent and the father on 3 and 4 April 2012 and set out in annexure “B” to the respondent’s affidavit.
·Around April or May 2012 the respondent’s lease on her London apartment expired and she moved to Paris to live with the father “to see if we could again make the relationship work”.
·In June 2012, when the respondent was six months into her pregnancy, she and the father were engaged to be married. The father asked that she enter into a pre-nuptial agreement prior to the marriage.
·In June 2012 the respondent returned to Sydney (for one month) for business and also to assist her mother.
·Sometime during 2012 there was a discussion between the respondent and the father where the father asked the respondent to sell her house in Australia and put the funds towards a house in France, where they could live together with the father’s other children. The respondent said to the father “I will not live here (France) permanently unless you can support me. My business is in Australia. My house and my family are all there too. I intend to live in Australia. If I move permanently to Paris I will not be able to work.”
·At and following the birth of the child there were arguments between the respondent and the father during which the respondent stated her desire to leave France and live in the UK or Australia.
·In October 2012 the respondent said to the father “I am moving back to Australia with [the child].” and “I am not staying here anymore. This city is so full of hate.”
·On 17 October 2012 the respondent and the father argued by text message. At the conclusion the respondent said “[The child] and I are leaving”.
·On 25 October 2012 the respondent booked a one-way ticket using frequent flyer points for herself and the child to travel to Australia on 10 December 2012.
·In November 2012 the father obtained a French passport for the child.
·On 10 December 2012 the father said to the respondent “God knows you’ll never come back. I feel sorry for [the child], he is never coming back here.”
·The respondent left Paris on 10 December 2012 with 40 kilograms of luggage, which was the amount allowed by the airline, and she sent 10 boxes via the father to London where she arranged to have them shipped to Sydney.
·The father travelled to Sydney on 20 December 2012 and left on 6 January 2013. The respondent says she did not want him to stay with her, however, he had booked no accommodation so he stayed. He stayed for three weeks. The respondent asserts that he spent little time with the child during that period and that there were arguments. On the way to the airport for the father’s departure on 6 January 2013 he said to the respondent “This will never work. Australia is clearly your home. You need to be here for your business.”
(I note the father denied saying these words in cross-examination. I accept the respondent’s evidence that words to this effect were said by the father for the reasons stated elsewhere in these reasons as to the credit of each of the respondent and the father.)
·Between January 2013 and July 2013 there were numerous messages and emails between the parties which discussed various propositions about possible future cohabitation. Some of the exchanges are unseemly. Between February 2013 and July 2013 the respondent and the father exchanged text messages. The messages appear to be attempts to see if a life together was possible. It seems evident that the respondent was trying to create an intact family environment for the child to be raised in. The tone of the text messages is combative. The respondent suggested that the father might find her a shop premises from which to run her business in Paris. The father replied “am not interested to live with you”. However, he said it would be good to see the child.
·In March 2013 the respondent obtained an Australian passport for the child. The father signed the passport application form.
·On 16 March 2013 the respondent purchased a property in Sydney. The respondent let the property but her plan was to live in it in the future.
·On 5 May 2013 the father sent a text to the respondent saying “I am going to put your things in boxes.” The respondent replied “I’d rather you didn’t touch my belongings. I will be there in a few weeks to pack up myself. Just make..”(The balance of the text was not included in evidence).
·On 17 June 2013 the respondent sent a text to the father which was critical of him and then said “Why don’t you buy a 4 bedroom house which you can afford (I will put down $AUD100K) in the suburbs of Paris and [the child] and I will come to live in France. Your kids can visit every second Friday and leave Sunday. That is just the norm. If this is unacceptable to you I am sorry. I live and work in Sydney, You are welcome to visit [the child] anytime.” The respondent did not include a reply from the father, if there was one.
·On 4 July 2013 the father sent a text message to the mother which said inter alia “[Mother’s first name} I need a proof of you staying in Australia.”
·In July 2013 there was correspondence between the father and the respondent about the father seeing the child. The father advised the respondent that he proposed to travel to Australia in July to see the child. The respondent told him not to come as she would be travelling to London. On 4 July 2013 the respondent advised the father she would be “coming back to Paris in August”. This information was provided in answer to a text message from the father about cancelling the respondent’s telephone service in Europe. The father replied to the respondent’s text about being in Paris in August: “We need to cancel it at some stage as we will not be together, wherever you are.” She replied “Is the phone your only problem? Get a life.”
·On 16 August 2013 the respondent booked air travel for herself and the child for departure from Sydney to London on 20 August 2013 and for their return on 5 December 2013.(I am satisfied that when the respondent booked this air travel she had no expectation that she would be remaining in London indefinitely.)
·On 21 August 2013 the respondent, the child and the respondent’s mother arrived in London. When the respondent arrived in London, she was contacted by telephone by the father on a UK mobile number that she arranged for the trip and had notified the father of.
·The respondent entered into a short term lease in London from 10 September 2013 to 5 December 2013. The apartment was furnished. (I am satisfied that when the respondent entered into this lease she intended she would be returning to Australia on 5 December 2013.)
·In an email exchange between the father and the respondent on 24 September 2013 the father asked: “Are you going back to Australia to live permanently?” The respondent replied “I told you going back in December and yes permanently. I was going to bring [the child] to Normandy and come and collect my things at the same time but you are in such a rush to get rid of our things I have to change plans. Can you not wait till next week? Also needed you to make a Dr apt for [the child].”
·In September 2013 the father saw the child in London.
·Between 24 and 27 September 2013 the father and the respondent exchanged text messages. They related to the respondent attending the father’s flat in Paris to collect her and the child’s belongings. The father said he wanted to keep some of the child’s belongings.
·Either on 2 or 5 October 2013 the respondent attended at the father’s flat to pack up and collect her possessions (or at least what she could carry). The father had a security guard attend at the time the respondent was in his flat. The respondent was permitted two hours access. (Note: This occasion must have been on between 30 September 2013 and 2 October 2013 and not the date stated by the respondent of 2 or 5 October 2013. I have accepted that the respondent and the child departed France by train on 2 October 2013.)
·The following day the respondent attended at the flat again and the father allowed her a further 15 minutes to collect more of her belongings.
·The father drove the respondent and the child to the train station to depart France. He accompanied them into the station. When at the customs desk, the officer asked the father “if he was okay with me (the respondent) taking his son out of the country.” The father responded with words to the effect: “yes just take him”.
I am satisfied in the circumstances of this case there was nothing underhanded or deceitful about the way the respondent secured the consent I have found to have been made and so there is nothing about that which would inform the discretion to the end of ordering a return.
Prejudice to the parties of exercising the discretion one way or the other.
The consequences to the respondent of requiring her to move to France pending the hearing of a parenting case are more onerous than the consequences to the father of having to attend a hearing in Australia to obtain court orders should that be necessary. There is no indication from the respondent that if the child was required to return to France she would not accompany him. The respondent would reasonably be expected to spend some weeks, if not months (depending upon delays in the French courts) living in Paris with the child pending the determination of her application to remove the child to Australia to live with her. During that time she would need to conduct her business which I accept is principally centred in Australia. The father would only need to be in Australia for the time of any hearing. The preparation of his case could reasonably be expected to be able to be prepared as a result of long distance communication including email, Skype and the like should he engage a legal representative.
Following from the above I will dismiss the application.
I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 30 October 2014
Associate:
Date: 30 October 2014
Schedule to Reasons.
The English Proceeding.
PRIMARY EVIDENCE
EMAILS
| TAB | DOCUMENT | EVIDENCE |
| E | Email from father to mother re dated 24/11/2013- annexed to statement of the father dated 3 December 2013 (see p 14 of tab E) | “In December I could come to London the weekend of 7/8 or 21/22 and take some days off before the weekend. I could also take him for Christmas but would be at my parents house for one week from 23rd. … …I would very much welcome a quick, and positive, answer. I have already made several requests for 7/8 of Dec and did not get any answers….” |
| E | Email from mother to father re dated 25/11/2013 annexed to statement of the father dated 3 December 2013 (see p 16-20 of tab E) | It is now 3 months since we arrived in London….You could have visited [the child] every opportunity you had….. …You were so keen to come to Australia (to enjoy your favourite brothels and golf). But now that [the child] is only 2 hours away from you, you have used every excuse under the sun not to come here when the cost is only a fraction of the cost of coming to Australia. It is clear just how keen you really are to spend time with [the child]…. …As I told you when you were in London in October, we are leaving for Australia the first week of December. Therefore; as you well know, none of the dates you mention below are suitable as we will be back in Australia. I am available this week/weekend. It is your last chance to take advantage of the much cheaper option in front of you to see [the child]. (bold emphasis in original) |
| E | Email from father to mother dated 25/11/2013 annexed to statement of the father dated 3 December 2013 (see p 21 of tab E) | “Seeing him under your supervision….I will not do it….If you change your mind regarding this important condition given your departure soon, I would try to see if I can take days off later this week to see him. I did not know when exactly you would go as you never replied to the several recent requests I made re your leaving to Australia and when and I do not recall you telling me clearly about your plans.” |
| E | Email from father to mother dated 26/11/2013 annexed to statement of the father dated 3 December 2013 (see p 22 of tab E) | “I would like to know if and when you plan to come back to the UK with [the child]? I am quite anxious as if you stay in Australia for another 8 months, how can I grow a relationship with [the child]? When exactly are you scheduled to fly out next week? I hope I can be a good dad to [the child], with the unfortunate limitation being the physical distance that will make seeing him frequently more difficult” (bold emphasis in original) |
| E | Email from father to mother dated 26/11/2013 annexed to statement of the father dated 3 December 2013 (see p 23 of tab E) | “I repeat my question, what day do you plan to leave for Australia and when do you plan to return to England?” |
| E | Email from father to mother dated 27/11/2013 annexed to statement of the father dated 3 December 2013 (see p 24 of tab E) | “…. – you say you will go back to Australia but you refuse to tell me (I asked twice) when or if you would be back residing in the UK at all.” |
| E | Email from Mr R to mother dated 6/12/2013 Exhibit AA7 of unsigned statement of the mother in December 2013, see p 91 of Tab E | “Subject: [London rental property] [Ms Abdelnour], Unfortunately the Landlord is not able to grant a renewal of the tenancy at the above property and does require possession of the property back. Accordingly you will need to vacate the property and return the keys to the … office no later than 8pm tomorrow night” |
TEXT MESSAGES
| TAB | DOCUMENT | EVIDENCE |
| E | Text message from the father dated 4 July 2013 Exhibit AA8 of unsigned statement of the mother in December 2013, see p 93 of Tab E | “[Mother’s first name] I need a proof of you staying in Australia – a recent invoice for phone w your name in Australia for instance- for them to waive me the fee (subscription till 08/14) for cancelling the SFR phone line you have. I have until this Saturday to give them that information…” |
| E | Text message from the mother dated 24 September 2013 Exhibit AA5 of unsigned statement of the mother in December 2013, see p 78 of Tab E | “No you didn’t say you were coming but when I saw how you cried for [the child] I thought would make seeing him a priority given we are only here for 2 months but as usual your Ex has occupied you time ensuring you see as little of [the child] as possible. These actions only affect your relationship with [the child] in the future. (bold emphasis added) |
| E | Text message from the father dated 24 September 2013 Exhibit AA5 of unsigned statement of the mother in December 2013, see p 75 of Tab E | “Are you going back to Australia to live permanently?” (bold emphasis added) |
| E | Text message from the mother dated 24 September 2013 Exhibit AA5 of unsigned statement of the mother in December 2013, see p 76-77 of Tab E | “I told you going back in December and yes permanently. I was going to bring [the child] to Normandy and come to collect my things at the same time but you are in such a rush to get rid of our things I have to change my plans. Can you not wait till next week? Also I needed you to make Dr apt for [the child]… (bold emphasis added) |
OTHER DOCUMENTARY EVIDENCE
| TAB | DOCUMENT TYPE |
| E | One way Singapore Airlines ticket from Paris to Sydney departing 10 December 2012 Exhibit AA4 of unsigned statement of the mother in December 2013, see p 45 of Tab E |
| E | Australian Passport Application for the child showing consent of the father dated 13/03/2013 Exhibit AA2 of unsigned statement of the mother in December 2013, see p 52 of Tab E |
| E | Qantas E ticket Itinerary showing return flights from Sydney to London departing 20 August 2013 and returning 05 December 2013 Exhibit AA3 of unsigned statement of the mother in December 2013, see p 54 of Tab E |
| E | Tenancy Application for the mother for the London rental property for the term 10 September 2013 to 5th December 2013 Deposit slip for the rent “for the entire term of the tenancy of 87 days” Exhibit AA4 of unsigned statement of the mother in December 2013, see p 57 and 73 of Tab E |
COURT DOCUMENTS
STATEMENTS OF THE PARTIES
| TAB | DOCUMENT | EVIDENCE |
| E | Statement of the mother – unsigned – December 2013 – faxed on 12/12/2013 See p 33 onwards of Tab E | “8. Since 2005 I have been visiting London for business purposes. The duration of my visits to London I have varied but I have never relocated to England permanently. My home has always remained in Australia save for the short time that I lived in Paris just before and after giving birth to [the child] as explained later in this statement.” 21. I obtained a Tier 1 (Entrepreneur) Migrant visa enabling me to remain in the UK from 30th March 2011 to 7th March 2014. I came back to London on 30th March 2011 and rented out a flat. I started to collate clients and my intention at that point was to run my business between England and Australia for some time. …. 30. Eventually I booked a one-way flight ticket for myself and [the child] to Australia…..We flew to Australia on 10 December 2012…..” ….. 41. [The child], myself and my mother arrived in London on 21 August 2013. My mother’s house was left unoccupied, ready for our return to Australia. We had travelled to England on a return ticket. We were scheduled to return on 5th December 2013. There is now produced and shown to me marked “AA3” a copy of our return flight tickets. I had always intended to return to Australia with [the child] on 5th December 2013.I only ever planned to be in London for 3 months as I thought that would be sufficient time for me to market my business in this country. I took out a short-term tenancy on an apartment in London which ran from 10 September to 5 December 2013. I did not intend to stay in England beyond 5th December 2013 and intended to return to Australia with [the child] and my mother to continue our lives there. There is now produced and shown to me marked “AA4” a copy of the short term tenancy along with a receipt of the deposit paid for the rent. 42. On the day of my arrival, [the father] telephoned me on my Uk telephone number (which I had provided to him) and I told him that [the child] and I were now in London. I never suggested to him that we were living in London on any long term basis. I had hoped that [the father] and I could reconcile (even at this late stage) in which case I was prepared to move to Paris to join him but in the absence of a reconciliation, I was very clear that [the child] and I would be returning to Australia by 5th December 2013. 43. …On 24th September 2013 in response to a message from [the father] asking “Are you going back to Australia to live permanently?” I sent [the father] a text message saying that we were only in England for two more months and therefore he should make the most of our time in Europe. I sent a further message to [the father] on 24th September 2013 saying “I told you, going back in December and yes permanently”. There is now produced and shown to me marked “AA5” copies of these messages… 48. [The father] had provided some clothes for [the child]. On 29th October 2013 I sent [the father] an email saying “These clothes are far too warm for the 45 degree heat of summer we are going back to….” 49. I was shocked that [the father] had started these proceedings in circumstances where it has always been abundantly clear to [the father] that [the child] and I were only going to be in England for months and [the father] had previously accepted the fact that [the child] and I would live in Australia following our relationship breakdown. The emails that [the father] has exhibited to his statement clearly show that I was being transparent with him about the fact that [the child] and I would be returning to Australia in December. 50. Once I had been served with these proceedings I made enquiries as to whether we could continue to stay in the apartment we had been staying in for the last 3 months pending the conclusion of the hearing on 16th December 2013 but I was told that this was not possible. There is now produced and shown to me marked “AA7” a copy of an email dated 5th December 2013 from the letting agent confirming that I needed to return to keys for the apartment on the morning of 6th December 2013. I was forced to find alternative temporary accommodation until 16th December 2013… 51. Upon being served with the proceedings, I noted that I had been ordered to attend a hearing on 5th December 2013 but this was the same day that we were due to fly back to Australia. The short term lease on the property that we had been living in in London was also due to come to an end on that very day. I had planned to put all of the things that [the father] had dropped off to me in October 2013 into storage for now prior to the return to Australia. I did not have any need for them in Australia as we already had everything we needed in Australia. My visa to stay in England was not to expire until March 2014 and therefore I thought I could always come back in the New Year to make arrangements for the things to be shipped over. 52. Before the hearing on 5th December 2013, I organised for all of our things to be put into storage. I then attended Court and represented myself. I made it clear at that hearing that the intention had always been for [the child] to return to Australia with me this month and that [the father] was aware of this. 53. I had various meetings, projects and prior commitments scheduled in Australia this week. I had a meeting planned with my accountant in Australia as well as my financail broker. The proceedings have caused me huge practical difficulties. I also had a meeting this week with a printing company as my business is releasing new products and we were to design and print new packaging for these products this week. This is the busiest time of the year for my business and I am loosing vital revenue by being detained here. I need to return to Australia urgently. I also have important family commitments and I needed to be in Sydney on 9th and 14th December 2013 for these family events. 54. In summary, my trip to London in August 2013 was only ever temporary. Essentially it was a 3 month business trip. [The father] had no reason to believe that [the child] and I would live in London on a long term basis. [The father] had known since at least September 2013 that [the child] and I would be returning to Australia in December 2013. [The father] was accepting of us living in Australia until after we arrived in London for this short trip. There is now produced and shown to me marked “AA8” a message [the father] sent to me as an illustration he had accepted [the child] and I lived in Australia. [The child] and I have not settled in England and I never intended for us to do so. [The child] remains habitually resident in Australia…. (bold emphasis added). |
| E | Statement of the father dated 3/12/2013 See p 1 onwards of tab E | At Para 11 - 14, he states: 14. [The mother] has not replied to two written requests I made asking about the date of return from Australia to England. She told me on one occasion that her place in [London] is rented but that the lease is short term and she has no certainty on how long she might be able to stay there. Thus it is not clear to me what her plans are going forward. Therefore, I am worried that she may seek to take [the child] to Australia and remain there as a permanent resident. (bold emphasis added) |
| C | Statement of the father dated 18/12/2013 See p 16 and onwards of tab C | 3. I refer to the statement made by me on 3rd December 2013 and the urgent without notice application made on that day. At that stage I was under the impression, because that is what she had given me to believe, that the Respondent was living with [the child] in England. The matter came before the Court on 5th December 2013. The Respondent appeared that day in person. The Respondent said at the hearing that she and [the child] were living permanently in Australia. The Respondent also said that I was aware that she and [the child] lived in Australia permanently and that it was with my consent. By 3rd December 2013 I was indeed concerned about her intentions because she had been purposefully evasive…. ….Whilst I was aware that the Respondent intended to travel to Australia with [the child] at Christmas this year, I believed it to be for a holiday, but she would not tell me when she would return. Indeed contrary to what she says I did not know her precise date of her planned departure for her trip. I was not aware that she had return tickets, but if she did it was not unusual for her to buy return tickets and to utilise the return element (which she would move). I did not and do not oppose a holiday in Australia but I did oppose [the child] travelling to Australia without proper and secure arrangements for his return. When I made my without notice application my primary concern was to prevent [the child] being taken to Australia and retained there… …4. It is my contention as follows:- i. At no time did I agree to [the child] living in Australia….I did agree to him travelling to Australia with the Respondent for a visit in December 2012. ii. I never conceded that he should not return to France. France was and is always his considered his home. iii. [The child] travelled to Australia on 10th December 2012 and was to be returned to France at the end of March 2013, in time for a meeting set up for the Respondent with the French immigration authorities on 4th April 2013…. … vii. The Respondent made the unilateral decision to take [the child] to England when she concluded her trip to Australia. I did not at that time raise a formal objection to that. I was relieved that [the child] had returned to Europe. viii. …I was given to believe that she was living in and was intending to remain living in England. By her actions including renting a home when taken together with her previous connection with England and he business there she gave me to believe that she wanted permanently to re-settle in the UK. The Respondent had been living in England for some time and was happy in England when she moved to France to live with me in May 2012. I did not formally consent to [the child] living in the UK, but I accept that I did not raise an objection to it. I was relieved that he was back in Europe and close to France.” xi. I issued proceedings on 3rd December 2013 only when despite my numerous attempts to extract a date for [the child’s] return from his trip to Australia from her she simply refused to give me one. As the full course of communication between us shows she purposely sought to avoid answering the questions I asked of her as to her intended plans. It became my very real fear that she did indeed intend to leave England with our son and not return [the child].. … “I am the father of [the child], our son. I am making the following request- what are your intentions as for residence? – How can we arrange a time for me to spend time with him. If you do not answer as usual it will confirm that you continue being uncooperative and I will need to know what I need to do. I will assume my responsibilities and have my rights respected on way or another.” …. “I need to know where [the child] lives and what your intentions are for the remainder of 2013.” 16. I had indeed in March at her request signed an application form for consent to [the child] having an Australian passport. That did not in any way suggest that I consented to him living in Australia. I did it because I saw no reason why he should not have the benefit of an Australian passport, his mother is Australian and I am French. He had a French passport and I saw o reason why he should not have an Australian passport. She told me also that it assisted her in registering him for Medi-Care of some form in Australia. And also I would like to know your intentions are as for location. It would be good for all to clarify the situation on all counts. I have to live in these limbos. It is good for no one. Maybe you know what you are doing and you play with me not disclosing anything at all.”.. On the 22nd May 2013 I wrote to her: “…You basically abducted my son and took him to the other side of the world and refuse to make any plans for him. This is what is happening.” …. “It is okay, have it your way. I am staying in Australia. Goodbye.” … “Also I would like to repeat that I have never consented to that you take [the child] out of France for so long. The initial plan was for you to come back at the latest in early April to France for an immigration meeting….” … “.... I need proof of you staying in Australia- a recent invoice or phone with your name in Australia for instance.” I suggested that I should cancel her French phone contract. The response that she sent me on 4th July 2013 was: “keep it I am coming back to Paris in August”. … “…..And this is despite the fact that you left to the other end of the planet without my agreement (I never agreed for [the child] to live permanently in Australia and I have no indication whatsoever on the future…It is a state of total uncertainty” 29. ……On 26th August 2013, I asked her: “Are you staying in London for good?” On 27 August 2013 I wrote again: “I notice you have not responded to my question as to whether you are staying permanently in the UK. With no answer I make the assumption that you will so there is no immediate time constraint.” 30. As will be seen, from that time on, the text messages are all one-sided, as I did not receive a response from her until 20 September 2013: “Yes let me know when you are here and you can see him. Bring his pushchair, its raincover and all his other things like blankets etc.” … “are you going back to Australia to live permanently” The response I received was: “I told you I am going back in December and yes permanently…” I replied to say that: “if you are moving back to Australia it will be heartbreaking for [the child], he rarely sees his dad”. … “Hi …, as I mentioned to you last Monday, [th child] needs to see his paediatrician in Paris urgently. I would like to come to the apartment. I don’t see why we should not. It’s [the child’s] home, and it’s a good opportunity for the kids to spend time together. I know you keep saying we are separated since you met someone else but of course we are not separated, it is just what you like to think and say to relieve your conscience as you continue to cheat. I never left Paris for good or planned to separate from you. I left all of my and [the child’s] belongings there and plan to come back as you well know. You have always cheated on me it is nothing new. You can’t be surprised that I didn’t want to speak to you while you were physically cheating on me since you left to to Australia…I am not sure why, as your partner, I was never given a set of keys to the apartment. Please leave a set of keys with the caretaker for Friday.” [VL/1, p. 111] I responded to the effect that what she said did not make sense. “what about it doesn’t make sense? I went to Australia for work and a few months later you started telling me we are not together anymore to come and collect my things. What is the reason behind this? We both know cheating is like breathing to you. I know you have been seeing other women during my absence and I have every right to be angry about that. Am I the first one to travel for work? Do all people like me get told to stay away from the house as a result of being away? Or is it just a pattern of abandoning your partner as soon as they give birth to your child? I did not have [the child] to raise him as a single mother. You promised to build a family with me. You said all this when we met nearly 6 years ago and until 2012 before I got pregnant. For [the child’s] sake I can’t let you do this so easily we made a commitment to be together and raise [the child]. Your sexual whims won’t last just like all the times before. It isn’t your first time to cheat but we can work on it being your last. You need to get therapy on an ongoing basis. What is insane is that you want to lock me out from the home I left behind. There is no good reason why I cannot come back to my life and belongings in Paris.” [VL/1, page 115] … “As I told the mediator I will not engage with you any further until you send all my belongings back to London”. [VL/1, page 162] Again on 15 October 2013 she wrote to me: “You will pay the full cost of moving any belongings back to London” [VL/1, page 162] Around that time we also discussed the logistics of arranging removers to ship the boxes from Paris. At no time did she suggest (as would have been logical) that the boxes be shipped directly to Australia. All of her essential belongings were in Paris, not Australia. She confirmed on 16 October 2013: “I moved my home from London to Paris last year” [VL/1, page 164]. 37. I travelled to London on the weekend on 27 October 2013…. She told me that she liked the house and the area she was living in. She said she was trying to extend her lease with her landlord because she didn’t want to move out to another property. She told me she was busy with her business and it was easy to take care of….She told me that she wanted to stay in London. 38…..On 21 October 2013 I left to return to France. Following the visit, I wrote: “…, you know what I want. I want us to be a family for [the child]. It makes me sad when you leave him…..I want more than anything for [the child] to have a full-time father & this means we have to live in Paris bc of T & C. I know things were difficult when I was in Paris. I am sorry for my part…” 39. …It was when I received her email of 25 November 2013 [V1/1, page 222] that I began to have very real doubts about what she intended to do, and whether she would try to take [the child] away from London permanently. She had mentioned in my October visit that she was planning a trip to Australia in December. The Respondent clearly said it in a way to suggest a visit; I assumed for Christmas. Her email of 25 November 2013 was full of vitriol against me, my ex-wife, and the reasons for the break down in our relationship. Not once did she respond to my enquiry about her plans to return [the child] to London. Nor did she say that she was going back to Australia permanently. The same was the position in her email of 28 November 2013 [VL/1, page 228]. The email was full of financial demands, but silent on the subject of Australia. 41. I believed, because that is what she led me to believe, that that when the Respondent came to England in August 2013, she came with the hopes to live here with [the child]…. I was prepared to go along with her living in England as that is what she wanted, as she told me. I did not think for one minute that she would seek to say that she and [the child] were living in Australia and had been since December 2012. That was simply not the position. She took [the child] to Australia and overstayed, all the time delaying their return to France. Whilst she overstayed in Australia and kept [the child] there, I never agreed to her staying there permanently, and further, she never said that is what she wanted to do, otherwise than in anger, which she then retracted from. 42. At the end of November 2013, I had considered that she no longer wanted to live in England because I had not agreed to reconcile with her. I believed that her anger would push her to take [the child] on holiday to Australia and keep him there. |
OTHER COURT DOCUMENTS
| TAB | DOCUMENT | EVIDENCE |
| A | Position Statement and case summary on behalf of the Applicant (father) 5/12/2013 | 4……The mother moved to England initially around 2011….. 5. The mother has been living in London since August 2013. The father consented to [the child] living here, although he was not consulte prior to the move. The mother has spent periods in Australia throughout [the child’s] life… 11. The father’s position will depend on the mother’s stance….he does not wish to stop the mother from going on holiday to Australia. Rather, he sought information regarding the mother’s plan… |
| F | Transcript of proceedings before her Honour Judge Cahill QC in the UK High Court dated 5/12/2013 | P1, line 35 onwards, the mother states: “I just want to let you know that I’d die to live in England. I live in Australia. I don’t know where this information has come about- that I live here. I have a visa- a business visa to come and go here for – to expand my business. But that is the extent of my sort of relationship with England in terms of whether or not I live here. In fact, I’m a national of Australia. I have a mortgage in Australia. I have a business. I have thirty employees. I’ve had my business in Australia for twenty years. I met [the child’s] father in Australia in 2007 and we have been together—We were together for the best part of the five years until this---last December… She continues at p 2, from line 10 onwards: ….In December of last year when I went to Australia for Christmas and for work, and he accompanied our son and I – You know, we left with his full consent of course. He came with us. Stayed at my mother’s home… At p4, the mother and Judge Cahill begin to go over the chronology of events in October, namely, that the father came to see [the child] in London in early October, the mother then went to Paris to collect her things and then she returned to London and had been there since. “It’s just a short term arrangement in [London] which has ended today” At p 6, from line 1 onwards, she states: “…I received these Orders when I was packing. And there was a lot to pack because it wasn’t just the suitcases that we arrived in London with. It was all of my belongings that he—that [the child’s] father brought with him from Paris…..All of my belongings --- My life which I took to Paris with me…..” At p 6, from line 18 onwards, she states: “But given that [the father] has thrown myself and – and [the child] – He threw us out of his apartment I don’t understand why I’m obliged to go back to France. My home is in Australia. And I don’t live in the UK either. I live in Australia. So, I’m not sure if this matter should be brought always in this jurisdiction in the first place. At line p 6, from line 37 onwards, she states: At p 7, line 27 onwards she states: At p 8, line 19 onwards, there is an exchange between Counsel for the father and Judge Cahill as follows: MISS CHOKOWRY:…..What is apparent is that there is considerable dispute in respect of the facts of this case. My lady will be well aware, for example, from the recent Supreme Court decision in Re A that the question of habitual residence is a question of fact. No doubt both parties’ oral evidence is going to be required. JUDGE CAHILL: Not necessarily. If in fact there was a flight ticket bought, as this lady came into this country, which shows that she was intending leaving again, and going to Australia in three months’ time, that may be viewed- it depends on what other circumstances there are- as a vitally important piece of evidence… At p 10, line 16 onwards, the mother states, referring to an email of 24th November,: At p 11, line 21 onwards, the mother says, with regard to her Visa to come to UK, At p 22, line 34 onwards: “JUDGE CAHILL:…So, the mother will say she informed the father that she and the child were returning to Australia at the beginning of December. (bold emphasis added) |
| D | Judgement of her Honour Judge Cahill QC of the High Court of Justice, Family Division 5/12/2013 | 1st page of the judgement, see p 43 of tab D: “Upon the Respondent Mother having shown Counsel for the Applicant Father in Court: (i) Electronic tickets for a flight due to depart for Australia on 3rd December 2013 for herself and the child. The said tickets being the return portion of tickets used by the Mother and child to travel to this jurisdiction from Australia with the airline Qantas in August 2013; (ii) Her Tier 1 (Entrepreneur) Migrant visa enabling her to remain in the UK from 30th March 2011 to 7th March 2014 AND UPON the Respondent Mother stating that she intends to leave for Australia with the child and not return to this jurisdiction;.... |
| G | Letter from the father’s lawyers to the wife’s lawyers 13/12/2013, see p 8 of Tab G | Letter sets out that: ….3. When your client took the child to Australia in December 2012 from France it was for the purposes of a business trip and a holiday with her family. 4. She was to return with the child to France by March 2013. Indeed she had an appointment arranged for 4th April 2103 with the French immigration authorities… ….6. Our client at no time consented to the child becoming habitually resident or living permanently in Australia nor did he acquiesce to that…. In August 2013 your client informed our client that she was coming to England to live with the child…… …your client did come here to this country with the intention to live permanently or by her cause of conduct and purposeful lack of clarity she gave our client to believe that she and the child were living in this jurisdiction and accordingly extracted his inaction in that regard by way of a deception. Had she on her arrival in this jurisdiction had at any time disclose an intention to remove the child permanently to Australia the father would have invoked Child Abduction and Custody Act proceedings immediately. (bold emphasis added) |
| B | Application under the Child Abduction and Custody Act 1985 by the father issued 13/12/2013 | P4 of the Application specifies the nationality of the child as “French & Australian” |
| C | Statement of Ms N (father’s solicitor) dated 13/12/2013 | 2. This application is for the return of the minor child to the jurisdiction of France where he remains habitually resident… 3….In early December 2012 the mother with the father’s agreement travelled to the jurisdiction of Australia for the purposes of a holiday and to visit with her family and for business. The minor was to return to France by March 2013. The minor was not returned to the mother…..The Applicant remained in communication with her anxious to secure the child’s return to Europe. In August 2013 the mother informed the father she was returning the minor to Europe and that she was going to live in England…. 4. The father did not formally consent to that move nor was his consent sought by the mother. 5. In November 2013 the mother indicated to the father that she intended to go to Australia, he believed for a holiday. The father’s numerous attempts to extract from the mother the date of her intended return with the minor were not responded to…. 6. The father had never consented to the child’s wrongful retention in Australia nor to the child living in Australia. He seeks the child’s summary return to France… |
| C | Letter from Mr G, court appointed lawyer, to father, dated 2/12/2013 | Last paragraph of the letter states “Since your son’s mother lives in the United Kingdom, it falls upon a jurisdiction of that country to determine the clauses for exercising paternal authority”. |
| Letter from Official Solicitor of the International Child Abduction and Contact Unit to Ms N dated 13/12/2013 | First paragraph of the letter states |
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