SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT (CTH) & DONALD - [2011] FamCA 482

FAMILY COURT OF AUSTRALIA

SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT (CTH) & DONALD

[2011] FamCA 482

FAMILY LAW - CHILD ABDUCTION – Hague convention – Habitual residence – Application for a child to be returned to New Zealand – Whether the child was an habitual resident of New Zealand immediately prior to retention by the mother in Australia – Whether child regained habitual residence in New Zealand when the father retained the child – Consideration of meaning of habitual residence – Whether the parenting agreement allowing the child to live with the mother in Australia was conditional – Where parent’s abandoned the child’s habitual residence in New Zealand – Where the mother did not subsequently agree to change the child’s habitual residence back to New Zealand – Whether the mother could establish habitual residence in a country in which she was not legally entitled to remain – Where immigration status is only one factor to be considered in determining habitual residence – LK V Director-General, DCS (2009) 237 CLR 582 followed – Approach to intention used in the application of law of domicile extended to matters of habitual residence by analogy –Department of Health and Community Services v Casse (1995) FLC 92-629 followed –Where status of “illegal non-citizen” does not exclude a finding of habitual residence – Where mother’s settled intention was to reside in Australia – Where mother had no lingering connection to New Zealand – Where the child acquired habitual residence in Australia at the same time as the mother –Where the Hague Convention of the Civil Aspects of International Child Abduction does not apply – Application by Commonwealth Central Authority dismissed.

FAMILY LAW - CHILDREN – Hague convention – Rights of Custody – Consideration of the Care of Children Act 2004 (NZ) – Where the father had rights of custody – Where father exercised the rights of custody in making parenting agreement and in determining the child’s place of residence.

Care of Children Act 2004 (NZ)
Convention on the Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16 (1A)

Bashir (Unreported, 1 February 1995)
Cooper and Casey (1995) 18 Fam LR 433
Department of Health and Community Services v Casse (1995) FLC 92-629
DW and Director General, Department of Child Safety (2006) FLC 93-255
HZ v State Central Authority (2006) FLC 93-264
Lim v Lim and Titcumb [1973] VR 370
LK V Director-General, DCS (2009) 237 CLR 582
Panayotides v Panayotides (1997) FLC 92-733
Povey v QANTAS Airways Ltd (2005) 223 CLR 189
Punter v Secretary for Justice [2007] 1 NZLR 40
Re B (Minors) (Abduction No. 2) (1993) 1 FLR 993
Re F [1992] 1 FLR 548
Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562
Salacup v Salacup (1993) FLC 92-431

APPLICANT:

Attorney-General's Department

RESPONDENT:

Ms Donald

FILE NUMBER:

SYC

2721

2011

DATE DELIVERED:

23 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

10 June 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Nanson, Australian Government Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Jamieson

SOLICITOR FOR THE RESPONDENT:

Bond Lawyers

Orders

That the application filed by the Secretary, Attorney-General’s Department (Cth) as the Central Authority on 12 May 2011 is dismissed.
All prior orders made in these proceedings are discharged.

IT IS NOTED that publication of this judgment under the pseudonym Secretary, Attorney-General’s Department & Donald is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2721 of 2011

Attorney-General's Department

Applicant

And

Ms Donald

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). By these regulations Australia ratified the Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”). The Abduction Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States.
The Secretary, Attorney-General’s Department representing the Commonwealth Central Authority (“the Central Authority”), started these proceedings with an application filed in this Court on 12 May 2011. It is the application of the Central Authority that orders are made which would have the effect of returning M born in December 2005 (“the child”), to New Zealand.
On 4 May 2010, Mr D (“the father”) and Ms Donald (“the mother”) signed in New Zealand a “joint parenting agreement” (“the parenting agreement”). Clause 1.1 of the parenting agreement said “[t]he parties have agreed that [the mother] will have day to day care of [the child] in Sydney, New South Wales.” At clause 1.9 of the parenting agreement, they identified where in Sydney the mother would live in relation to which it was agreed “… that while [the father] has agreed that while [the child] may live in Sydney, [the mother] will not change the residence that she is living at without consulting fully with [the father] and taking his views into account”. Later that day with the father’s knowledge, the mother left New Zealand with the child and travelled to Sydney, Australia.
In the following months and in accordance with the parenting agreement on three occasions the father spent time with the child in Australia and/or New Zealand. Again, by agreement, he collected the child in Australia on 15 October 2010 for what was to be a two week stay in New Zealand. With the mother’s agreement, the child remained in New Zealand a third week. However, at the end of the third week, because the father was concerned about the child’s welfare (in particular her health) he told the mother their agreement was at an end and the child would not be returned. The child remained in New Zealand until 25 March 2011.
On 25 March 2011, the father brought the child to Australia so that she could spend the weekend with him and the mother. On Sunday 27 March 2011 he agreed the child and mother could spend the day together without him. When later that day he arrived to collect the child, she and the mother were not present. An ugly scene took place during which it is alleged the mother’s sister attempted to run the father over. Unable to secure the child’s return, the father returned to New Zealand without her.
On 8 April 2011, the father applied to the New Zealand Central Authority for its help to secure the child’s return to New Zealand pursuant to the Abduction Convention. His request was accepted and the New Zealand Central Authority applied to the Commonwealth Central Authority on his behalf. Australia accepted the New Zealand Central Authority’s request and commenced these proceedings.
In the hope he may see or recover the child, the father came to Australia in early May 2011. Although arrangements had been made through local police for him to see the child, this did not occur and the father returned to New Zealand alone.
The Central Authority carries the onus of establishing that the Abduction Convention applies to the child. As a threshold requirement reg 16(1A) provides that a removal or retention is wrongful if:
a)the child was under 16; and
b)the child habitually resided in the convention country immediately before the child’s removal to, or retention in, Australia; and
c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
The mother said that the application should be dismissed. It is her contention that the Abduction Convention does not apply. According to her, since May 2010 the child has been habitually resident in Australia and was not, immediately prior to her failure to return the child to the father in March 2011, habitually resident in New Zealand. It was also argued, which argument I understood was later abandoned, that the father lacked “rights of custody” and thus the child’s retention in Australia was not in breach of those rights of custody. The mother did not rely upon any of the defences contained in the Regulations. In short, her case stood or fell upon her claim that the Abduction Convention has no application to the facts in this case. Thus, if the Central Authority established those elements required by reg 16(1A), the Court is obliged to order the child’s return to New Zealand.
The parties decided that the hearing would be determined without cross-examination. I contemplated whether it would nonetheless be appropriate for the Court to test contentious matters. However, when I considered the limited nature and extent of the contentious matters it seemed to me nothing useful to the forensic process would likely result from so doing.
I have applied the approach adopted by Jordan J, which was cited with approval by the Full Court in Panayotides v Panayotides (1997) FLC 92-733 per Fogarty and Baker JJ (with whom Finn J agreed), namely:
It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F [1992] 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.
See also HZ v State Central Authority (2006) FLC 93-264 where the Full Court accepted the trial Judge’s approach which adopted Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F, at page 554, as follows:-
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.

Background Facts

The father was born in Country 1 in March 1975.
The mother was born in Country 1 in November 1984.
In September 1993 the father arrived in New Zealand from Country 2. He has lived in New Zealand ever since and has a dual New Zealand and Country 1 citizenship.
The father and mother married in Country 2 in July 2004.
The mother joined the father in New Zealand on 27 January 2005 where they established their home. But for a few months in Australia in 2009, the mother lived in New Zealand until 4 May 2010.
The subject child was born in December 2005 in New Zealand. She is her parents’ only child and is a citizen of New Zealand.
In April 2009 the mother was granted permanent residence in New Zealand. She does not have New Zealand citizenship.
By agreement between the mother and father, in June 2009, she and the child came to Australia for a three month visit with her family. The mother’s family live in Australia and the father’s family live in New Zealand. While the mother and child were in Australia, the father visited them several times.
When the father realised it was the mother’s intention she and the child would remain in Australia, he applied under the Abduction Convention for orders that Australia return the child to New Zealand. Australia accepted New Zealand’s request and proceedings were commenced pursuant to the Abduction Convention in this Court in relation to which the mother consented to the making of a return order.
On 26 September 2009, the mother and child returned to New Zealand where she and the father resumed their troubled marriage.
On 1 November 2009 the mother and father separated. Although separated they continued to live in their family home. During the following period the father and mother consulted lawyers and reached agreement that the child would live with the mother and she could relocate with the child to Australia.
On 4 May 2010, the mother and father signed the parenting agreement following which the mother and child left New Zealand for Australia. The mother entered Australia as a tourist by reason of which she was entitled to remain in Australia for three months. Her visa did not entitle her to work. In Australia a TY-444 visa was issued to the child. The child’s visa permits her to remain in Australia indefinitely and is unconditional. Her visa ceases if she departs Australia. I infer each time since then when the child has departed and then returned to Australia, a fresh TY-444 visa was issued to her.
Between May and September 2010 the father visited the child three times in Australia. With the mother’s agreement, she spent two weeks with him in New Zealand in August 2010.
On 4 August 2010 the mother’s tourist visa expired. She did not apply for another visa until April 2011 and thus during the intervening period she was an illegal non-citizen who had no right to be in Australia.
Again, with the mother’s agreement, on 15 October 2010 the father collected the child in Australia and took her to New Zealand for two weeks. While the child was in New Zealand, the mother agreed she could remain an additional week. The father was concerned about the child’s weight (which was falling), that the mother had not enrolled her in day-care or kindergarten and had not taken steps to regularise her own presence in Australia and thus had not established a clear basis upon which the child could become either a citizen or permanent resident of this country. Because the child did not have permanent residence he was concerned this meant she was not entitled to health care or to attend school. At this time the father told the mother that their parental agreement was at an end and that he would not return the child.
Although the mother was aware of the Abduction Convention, she did not request that Australia seek to have New Zealand return the child. Telephone records produced by the father and the mother’s sister show regular calls between him and the mother between September 2010 and late March 2011. The vast majority of these telephone calls were initiated by the father to enable the child to keep in touch with the mother. So that it is clear, few calls were made by the mother. In any event, the father does not deny the mother’s evidence that on a number of occasions she asked him to return the child. I am satisfied she did and that he refused.
While the child was in New Zealand, she lived with the father. He enrolled her in preschool and, when she turned 5, she started school where it would appear she was doing well.
It was agreed between the mother and father that he would bring the child to Australia for a weekend with the mother which would commence on 25 March 2011. In accordance with their agreement, the child spent the weekend with the mother at the end of which she failed to return the child.
The father returned to New Zealand on 27 March 2011.
On 7 April 2011, the mother lodged with the Australian Department of Immigration & Citizenship an application for a protection visa. On lodgement, a Bridging Visa C issued to her. The bridging visa is valid until a decision is made on her application for a protection visa and the finalisation of any review process. The visa carries a condition that the mother not work and ceases if she departs Australia.
As was earlier referred to, the father returned to Australia in early May 2011 but left without the child.

Application of the law to the facts

It is common ground the child is under the age of 16 years and that Australia and New Zealand are signatories to the Abduction Convention.
The first contentious matter which requires consideration is whether the child was habitually resident in New Zealand immediately prior to her retention in Australia on 27 March 2011.
The term “habitual residence” is not defined in the Regulations, which determine the operation of the Abduction Convention in Australia, or the Abduction Convention. One must look to the case law, both local and of other contracting states, for guidance. This is permissible because international treaties should be interpreted uniformly by contracting states. Povey v QANTAS Airways Ltd (2005) 223 CLR 189.
In a seminal decision concerning the term “habitual residence” Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578-579, Lord Brandon of Oakbrook said:
It follows, I think, that the expression is not to be treated as an expression of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to not take up long term residence in country B instead. Such a person, cannot however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.
In Cooper and Casey (1995) 18 Fam LR 433 at 435 the Full Court cited with approval Waite J in Re B (Minors) (Abduction No. 2) (1993) 1 FLR 993 at 994 where it was held:
Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F above the Court of Appeal approved the judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.
In Re F, Butler-Sloss LJ adopted Lord Brandon of Oakbrook’s above quoted opinion in support of her conclusion that: “A young child cannot acquire habitual residence in isolation from those who care for him. While (the subject child) lived with both parents, he shared their common habitual residence or lack of it”.
The Full Court considered the authorities on the question of habitual residence, citing with approval those referred to above in DW and Director General, Department of Child Safety (2006) FLC 93-255. There, at par 43 and 44, Finn and May JJ in the majority held:
Subsequently in Panayotides (1997) FLC 92-733 at 83,897 the Full Court majority (Fogarty and Baker JJ) quoted with apparent approval the following passage from the judgment of the trial Judge in that case, Jordan J (emphasis added):
The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:
(1)the expression “habitually resident” is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990) 3 WLR 949);
(2)the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);
(3)the habitual residence of a child whose parents reside together is the habitual residence of those parents (see, Re B (minor) (1993) 1 FLR 993);
(4)it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (see, State Central Authority v McCall (1995) FLC 92-552);
(5) habitual residence refers to the parents’ habitual abode in a country:
‘Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.’
(See, re B (minor) (supra) p.995).
I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:
‘All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’
I do not accept an interpretation of the proposition advanced in In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.”
It is important, we think, to observe that this emphasized passage is virtually a direct quote of the second of the three principles which Waite J in Re B extracted from the English authorities and which was approved and adopted for Australia by Nicholson CJ (with whom the other members of the Full Court concurred) in Cooper v Casey. (original emphasis)

Habitual residence and the role of intention was considered by the High Court in LK V Director-General, DCS (2009) 237 CLR 582. It is clear that the authorities cited above remain good law. Their Honours referred with approval to Punter v Secretary for Justice [2007] 1 NZLR 40 and in particular remarks from Anderson P, Glazebrook, William Young and O’Reagan JJ who said :
[88] Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], the underlying connection between the child and the particular state.
Reference to settled intention or purpose does not import the approach to intention used in the application of the law of domicile.
In LK v Director-General, DCS the High Court pointed out that a person’s intentions may be ambiguous and that “individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future may hold.” Because of the potential significance to this case it is appropriate to quote fully the remarks next made by their Honours:
[33] Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
[34] Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
It follows that the authorities concerned with habitual residence do not comprise a closed list of considerations nor establish principles of general application which predetermine the weight to be given to particular factors.
Turning then to the facts in this case. The first question is what effect did the mother and child’s departure from New Zealand on 4 May 2010 have upon where each was habitually resident?
Prior to the child’s departure from New Zealand on 4 May 2010, she lived with her parents in their home in New Zealand. There is no doubt that the mother and father were then habitually resident in New Zealand as was the child. Not only had her parents made their home in New Zealand, it was also their daughter’s home and where (but for a few months in Australia) she had lived all her life.
As was referred to earlier, in anticipation of giving effect to their final separation the mother and father signed a parenting agreement in New Zealand. The parenting agreement is attached to the application initiating proceedings and is signed by each of them and their respective New Zealand solicitors. I have already referred to clauses 1.1 and 1.9. The remaining seven clauses addressed the father’s entitlement to see the child in Sydney and for her to “stay with him” during school holidays in New Zealand. Provision is made for the mother and father to “fully and properly consult with each other over any welfare and guardianship issues”, payment by the father of NZ$200.00 per week child maintenance, telephone contact and for the parents to co-operate (if requested) with the agreement’s registration. None of the clauses is expressed to make the agreement that the child live in Australia conditional upon compliance with the other conditions. Lest these remarks be misunderstood, the mother complied with the obligations imposed upon her under the parenting agreement. In relation to the agreement that the child lives in Australia being conditional, the issue is were there conditions about which the parenting agreement is silent?
According to the father, his “agreement that [the mother] could relocate to Sydney with [the child] is [was] subject to a number of conditions”. One was that the child would attend day-care rather than be cared for by the mother’s family while the mother worked. Another agreement, related to the mother ensuring the child ate well and was healthy. No reference is made to these matters in the parenting agreement.
According to the mother, the agreement was unconditional and the parenting agreement accurately records her and the father’s intentions and commitment for the child’s future.
The parenting agreement should be interpreted by giving the words their ordinary meaning. Approached in this manner, it is clear that in the parenting agreement the mother and father evince an unequivocal intention that the child live in Sydney with the mother. Also, that they would jointly exercise guardianship and the child would stay with the father in New Zealand for school holidays and those occasions he visited Sydney. It will be recalled both parents retained lawyers in relation to the parenting agreement and I infer the important decision about with which parent and in what country the child would live. Had the father’s agreement been conditional in the manner alleged by him this would have been referred to in the agreement. Alternatively there would have been correspondence between lawyers, for example, where this was at least mentioned. On balance I am not persuaded the father’s consent that the child live in Australia was conditional in the manner alleged by him.
I am satisfied that, although phrased differently, the parenting agreement records the parents’ shared intention to abandon the child’s habitual residence in New Zealand. Young children, as was mentioned earlier, generally have his or her parents’ habitual residence whilst their parents cohabit. Should their parents separate, a young child’s habitual residence, is reliant upon the parents’ intentions and the reality of how, post separation, they have arranged the child’s life. My point being, there is nothing in the case law which indicates a young child may have a habitual residence different to his or her relevant parents. I mean the term “relevant parent” to describe the parent or parents with whom by agreement or order the child resides and is thus dependent, not only in relation to his or her needs being met but also for the establishment of habitual residence. It follows that before the Court considers where, after 4 May 2010, the child was habitually resident, it is necessary to consider the mother’s habitual residence after she left New Zealand.
When the mother left New Zealand on 4 May 2010, she had no intention to return. Years earlier she had abandoned her life in Country 2 and her actions thereafter demonstrate she has no intention to return. Although her reasons are different, she also left her life in New Zealand behind and thus, abandoned New Zealand as her place of habitual residence.
Upon the mother and child’s arrival in Australia they lived with the maternal grandmother at her home in Sydney Suburb 1. Although the mother claimed she cared for the child, surveillance evidence established that the mother worked under a false name and members of her family cared for the child while she was at work. Every week the mother’s extended family (which includes another nine grandchildren) came together at the maternal grandmother’s home. The mother’s brothers and sisters provided her with financial support. In short, the mother and child settled into a routine of life which the mother hoped would continue indefinitely. Although he disagreed with aspects of the child’s care, this was also the father’s intention.
Clearly when the mother arrived in Australia she misled immigration authorities by her claim that she entered as a tourist. As already discussed it was her intention that she and the child live in Australia. It does not automatically follow that because she misled immigration authorities her actual intention should be ignored or greater weight attached to the representations I infer she must have made at entry. The mother’s actions prior to her arrival and subsequently strongly demonstrate her longstanding intention to live in Australia. To this end, misleading immigration on arrival was no more than part of her plan to live here.
It may be that the mother’s actions at the point of entry invalidate her tourist visa making her an illegal non-citizen from as early as May 2010 rather than August 2010 when the tourist visa expired. However, as will be discussed later the point at which the mother became an illegal non-citizen does not determine whether the question of habitual residence. Nor is the fact that on 7 April 2011 she was issued a Bridging Visa C as this postdates the date on which her habitual residence must be determined. The relevant question is: notwithstanding her intention to reside indefinitely in Australia, could the mother, as a wrongly claimed tourist and/or an illegal non-citizen, establish habitual residence in a country she was not legally entitled to remain?
Although it is accepted that settled intention or purpose does not import the approach to intention used in the application of law of domicile, the manner in which intention is applied in the establishment of a domicile of choice is illustrative. As was explained in Lim v Lim and Titcumb [1973] VR 370, a person may acquire a domicile of choice in Australia even where that person is not entitled to reside or remain here. This decision was adopted by the Full Court of the Family Court in Salacup v Salacup (1993) FLC 92-431. See also Bashir (Unreported, 1 February 1995), where Kay J held that a person could acquire a domicile of choice despite being, according to the Migration Act, an illegal non-citizen or as the term then used, an “unlawful non-citizen.”
In the context of the Abduction Convention, Kay J in Department of Health and Community Services v Casse found at 82,315 that there is no impediment to extending this line of authority to the matter of habitual residence. I agree. If it was intended that habitual residence could only be established if a person was legally entitled to enter or remain in a country, this would have been referred to in the Abduction Convention or the Regulations. To impose such words of limitation would require the application of an impermissible gloss to the Abduction Convention and the Regulations. In my view a person’s immigration status is but one factor to be considered, the significance of which is a matter for the trial judge and which may vary from case to case.
It follows that the mother’s status of “illegal non-citizen”, even from the time of her arrival in Australia does not prevent the Court from finding that she acquired habitual residence in Australia.
The mother has been residing in Sydney with her mother since 4 May 2010. From the outset she had substantial personal ties to the state and no lingering connection (other than the right to return) to New Zealand and probably Country 2. Her mother, sisters and extended family are permanently settled here, they having abandoned their own habitual residence - first in Country 1 and then Country 2. It is evident that the mother enjoys significant support from her large family, both financially and emotionally. She has also integrated herself into the wider community; is employed in the retail sector and providing income for her family. The strength of the mother’s intention to reside in Australia from even before she arrived was discussed earlier. Waite J in Re B (minor) at 998, commented that “A settled purpose is not something to be searched for under the microscope. If it is there at all it will stand out clearly as a matter of general impression.” In this case the clarity of the mother’s intention, her ties to the Australian community and lack of continuing ties to either New Zealand or Country 2, persuades me that notwithstanding her immigration status, within no more than a few weeks of her arrival she was habitually resident here. Thus I am satisfied that the mother was habitually resident in Australia well before the father took the child to New Zealand in October 2010. It follows that because the child was reliant upon the mother, with whom the parents agreed she would live, it is possible that at the same time the child acquired the same habitual residence.
The child holds a New Zealand passport and was issued a TY-444 visa at the border. Publications by the Australian Government Department of Immigration and Citizenship show that it is not necessary for a New Zealand citizen who holds a Special Category Visa (SCV), such as this, to apply for or be granted permanent residence in Australia in order to live here. As long as that person remains a New Zealand citizen, the SCV allows that citizen to remain and work in Australia lawfully. Whilst it is not a permanent visa, the status may qualify a person for limited social security and health benefits. Thus, from when the child arrived in Australia on 4 May 2010 she was permitted to live here and perhaps assume Medicare and other state entitlements despite not having Australian citizenship.[1]
[1] Commonwealth Government, Guide to Social Security Law. >
The child settled into life in Australia as quickly as her mother. In this regard their lives were inextricably linked. The child was reliant upon her mother and her mother’s family her care; including her intellectual, emotional, physical, social and personal needs. Her parents relinquished her connections to New Zealand and jointly set out to enable the mother to establish her life in Australia. She became habitually resident in Australia when her mother did.
When the child spent time with the father in New Zealand between March and September 2010 this was for an agreed limited period. Although the child returned to the home where she had previously lived and was cared for by the father and his family, there was no intention or agreement between the mother and father that the child would settle into her former life in New Zealand. None of these trips resulted in the child resuming habitual residence in New Zealand.
Nor, when the father withheld the child in New Zealand after the agreed three weeks had expired in October/November 2010 did she regain habitual residence in New Zealand. Although this was the father’s intention he did not have the mother’s agreement and he was not able to make such a decision for the child unilaterally. The mother did not subsequently agree to change the child’s habitual residence and I do not infer from her failure to commence proceedings under the Abduction Convention that she agreed to change the child’s habitual residence or agreed that the parenting agreement was at an end. On balance I am satisfied that, although the father kept the child in New Zealand until March 2011, he knew the mother wanted the child returned and that throughout that period she continued to be habitually resident in Australia.
It follows that I agree with the mother that when she retained the child at the end of the March 2011 weekend the child was habitually resident in Australia and not New Zealand. Thus the Abduction Convention does not apply and the application by the Central Authority will be dismissed.
If I am wrong in my finding that the child had become habitually resident in Australia, it does not follow she regained habitual residence in New Zealand. Having found that the parties abandoned the child’s habitual residence in New Zealand on 4 May 2010, the events which followed are more consistent with the child not having a habitual residence than they are with her regaining habitual residence in New Zealand.

Rights of custody

Because I have determined that the Abduction Convention does not apply it is unnecessary to consider the argument advanced on the mother’s behalf that the father did not, under New Zealand law, have rights of custody which he was then exercising. However, to put the mother’s assertions in this regard to rest I make the following comments. The Abduction Convention requires that the right of custody issue is determined by application of the laws of the place where the child is habitually resident. Had I determined that the child was habitually resident in New Zealand the expert evidence given by Margaret Gillian Powell, Barrister of the High Court of New Zealand, established that pursuant to the Care of Children Act 2004 (New Zealand) the father’s parental status afforded him rights of guardianship and consequently rights of custody. These rights and responsibilities are defined under ss 16 and 17 of the Care of Children Act 2004. Section 16 of the Care of Children Act 2004 contains the effect of guardianship and is set out below.
Section 16 Exercise of guardianship
(1)The duties, powers, rights and responsibilities of a guardian of a child include (without limitation) the guardians:
(a)having the role of providing day to day care for the child (however, under section 26(5), no testamentary guardian of a child has that role just because of an appointment under section 26); and
(b)contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and
(c)determining for or with the child, or helping the child to determine, questions about important matter affecting the child.
Sections 85 to 124 of the Care of Children Act 2004 implement the Abduction Convention in relation to which s 97 defines rights of custody as set out below.
Section 97 Rights of custody defined
For the purposes of this subpart, rights of custody, in relation to a child, include the following right attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting state in which the child was habitually resident immediately before the child’s removal or retention:
(d)rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and
(e)in particular, the right to determine the child’s place of residence.”
I accept Ms Powell’s opinion that the father had rights of custody as defined in s 97 of the Care of Children Act 2004 (New Zealand) which included the right to determine the child’s place of residence. This right was not lost when he signed the parenting agreement or thereafter. Indeed the parenting agreement was a practical example of how he continued to exercise those rights including immediately prior to the child’s retention by the mother.

Conclusion

For these reasons the application of the Central Authority will be dismissed.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 June 2011.

Associate:

Date: 23 June 2011