Secretary, Department of Communities and Justice & Irons
[2022] FedCFamC1F 383
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Communities and Justice & Irons [2022] FedCFamC1F 383
File number(s): SYC 8320 of 2021 Judgment of: WILLIAMS J Date of judgment: 30 May 2022 Catchwords: FAMILY LAW – CHILD ABDUCTION – Where the mother removed the nine year old child from the United Kingdom to Australia – Where the application made by the State Central Authority seeking the child’s return was brought more than one year after the child’s removal – Whether the removal was wrongful – Where the father had rights of custody – Where the father was not actually exercising rights of custody at the time of the child’s removal and those rights would not have been exercised had the child not been removed – Consideration of regulation 16(2) – Where the child is well-settled in her new environment – Where the jurisdictional facts have not been satisfied to establish the removal of the child as wrongful – Where the Court does not have discretion to consider ordering the child’s return in circumstances where it has been established that the child is well-settled – Application dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16
Children Act 1989 (UK) ss 3, 4, 13
Cases cited: Cannon v Cannon [2004] EWCA Civ 1330
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
Department of Family and Community Services & Magoulas [2018] FamCA 102
DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401
HZ & State Central Authority [2006] FamCA 466
Re D (a Child) (Abduction: Rights of Custody) [2007] 1 AC 619
Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165
Simpson v Hamilton [2019] NZCA 579
State Central Authority & Castillo [2015] FamCA 792
State Central Authority & Hajjar [2010] FamCA 648
Division: Division 1 First Instance Number of paragraphs: 87 Date of hearing: 9–10 May 2022 Place: Melbourne Counsel for the Applicant: Mr Harris Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: Brander Smith McKnight Lawyers ORDERS
SYC 8320 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECTRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS IRONS
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
30 MAY 2022
THE COURT ORDERS THAT:
1.The Application filed by the Secretary, Department of Communities and Justice on 10 November 2021 is hereby dismissed.
2.Paragraphs 1–3 of the Orders made on 12 November 2021 be discharged.
3.Paragraph 5 of the Orders made on 12 November 2021 be discharged and the respondent mother be entitled to retrieve any passports lodged for safe keeping with the court.
4.The Court requests that the Australian Federal Police remove the names of the respondent mother, Ms Irons born 1971 and the child X born 2013 from the Watch List at all points of international arrivals and departures in Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Communities and Justice & Irons has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
This is an application by the Secretary, Department of Communities and Justice (“the State Central Authority”) filed on 10 November 2021 seeking the return to the United Kingdom of the child, X, born in 2013 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Irons is the mother of the child. The requesting parent, Mr C who lives in the United Kingdom is the father.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal of a child from his/her country of habitual residence. Both Australia and the United Kingdom are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466 (“HZ & State Central Authority”).
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a 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.
(2) If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, counsel for the State Central Authority cross-examined the respondent mother and counsel for the respondent cross-examined the father.
The State Central Authority asserts that the child has been wrongfully removed from the United Kingdom in accordance with regs 16(1) and (1A), on the following basis:
(a)although the application was not made within one year of the child’s removal, the respondent has not established under reg 16(2)(c) that the child is settled in her new environment;
(b)the child is under the age of 16;
(c)the child was habitually resident in the United Kingdom as at the date of removal;
(d)the requesting parent, the father, has rights of custody in relation to the child, which he was exercising immediately prior to the child’s removal or would have done so if the child had not been removed; and
(e)the removal of the child was in breach of the father’s rights of custody and therefore wrongful.
The respondent contends:
(a)the jurisdictional facts have not been satisfied to establish the removal of the child was wrongful;
(b)the application by the State Central Authority was filed on 10 November 2021, well over a year after the child’s removal on 15 October 2019; and
(c)the respondent has established that the child is well settled in her new environment.
She also seeks to rely on the regulatory exception (reg 16(3)(a)(i)), because at the time of removal of the child on 15 October 2019 the father had not actually been exercising rights of custody, nor would he have done so if the child had not been removed.
The respondent initially sought to also rely upon reg 16(3)(b), that return of the child to the United Kingdom would expose the child to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation. That was not pursued during the course of the hearing.
Once the jurisdictional facts are met, regs 16(1)(b) and 16(2)(b) draw a distinction between applications filed within one year after a child’s removal and applications filed more than one year after the day on which a child was first removed to Australia. In cases where an application is filed more than one year after the wrongful retention, a person opposing a return of a child is afforded an opportunity to persuade the court “that the child has settled in his or her new environment” (reg 16(2)(c)).
If a court is persuaded that a child is “settled in his or her new environment”, there is no discretion to order the summary return of a child: see Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165, at [18]. On the contrary, if the court finds that a child is not settled, return of the child is mandatory, subject to regulatory exceptions set out in reg 16(3). If one or more of the regulatory exceptions is sustained, the court retains a discretion to refuse the return of the child. As to the factors informing the exercise of that discretion: see HZ & State Central Authority.
Issues in dispute
The following issues required determination:
(a)at the time of the child’s removal to Australia, was the father actually exercising rights of custody or would have exercised those rights if the child had not been so removed (reg 16(1A)(e));
(b)if the removal was wrongful, as the application was filed more than one year after the day on which the child was removed, has the child settled in her new environment (reg 16(2)(c)).
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401.
If the application was filed more than one year after the day on which the child was retained in Australia, the respondent bears the onus of proof to establish the child is settled in Australia. She also bears the onus of proof to establish the regulatory exceptions to return.
Preliminary Matters
The hearing was conducted electronically via Microsoft Teams, which enabled the father to participate in the proceedings.
I wish to express my appreciation to both counsel for the professional and courteous manner in which the proceedings were conducted.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed 10 November 2021;
(b)Affidavits of Mr D filed 22 March 2022, 28 March 2022 and 20 April 2022;
(c)Outline of Case document filed 4 April 2022.
The respondent relied upon the following documents:
(a)Amended Form 2A Response filed 21 February 2022;
(b)Affidavit of Ms Irons filed 22 April 2022;
(c)Affidavit of Mr E filed 22 April 2022;
(d)Outline of Case document filed 27 April 2022.
Credit of Witnesses
The father gave evidence and was cross-examined. He answered questions directly, although he was unable to accurately recall events of the periods when he was substance affected. His oral evidence impressed me as someone who was trying to candidly and freely admit to the many years of substance abuse and addiction, although some of his affidavit sought to downplay adverse past event. Such an example was the statement in his affidavit about his criminal history.
The respondent mother gave evidence and was cross-examined. She was an impressive witness who also answered questions directly. Where her evidence differs from the father’s evidence, I prefer the evidence of the respondent, because the father, by his own admission, was severely alcohol and substance affected between 2014 and late 2018 and was unable to clearly recollect many relevant events during that time.
Background
The requesting father is aged 40, is a citizen of the United Kingdom, where he currently lives. The respondent is aged 50, is a New Zealand citizen who previously lived in City F, United Kingdom and currently resides in New South Wales.
The parents met in August 2010 and commenced a relationship in or around March 2011.
The child was born in 2013 in City F, United Kingdom and is currently nine years of age.
The father has a history of criminal convictions including being convicted of assaulting a police officer in 2000 and a conviction of sexual assault in 2008. The father also admits to a longstanding alcohol and drug addiction.
In December 2013, the respondent alleges the father exposed the child to an incident of domestic abuse after he was unable to secure a bank loan. The respondent asserts the father verbally berated her and threw a can of beans, narrowly missing the child. The father denies raising his voice or being violent.
The father travelled within the UK in January 2014 to complete a training course. Upon his return home in March 2014, the respondent contends the father appeared dishevelled, slurred his speech and she found various medications in their home. The father denies the allegations and asserts he was sober at that time. In August 2014, the father started drinking again and the respondent alleges an incident occurred in September 2014 when he appeared drunk and dishevelled, and spoke of morose matters to the child.
In September 2014, the parents separated and the father moved out of the family home.
Thereafter, the father asserted he continued to see the child for approximately 18 months and cared for the child while the respondent was at work. The respondent denies this and asserts that the father had limited supervised contact with the child except for three occasions. During cross-examination, the father conceded he was abusing substances between 2014 and 2018.
In October 2015, the parties attended mediation and agreed the father would see the child three times a week and have telephone communication four times a week. The respondent alleges these arrangements were only briefly complied with. The parents also reached an agreement to enable the child to accompany the respondent on a three month overseas holiday to Australia and New Zealand, which occurred from 31 December 2015 to March 2016.
During the holiday, the respondent remained in contact with the paternal family members, but only had minimal contact with the father.
Upon the respondents return to the United Kingdom, the parents liaised via text message about the father spending time with the child, which would occur at a supervised contact centre. Both parents agree some preliminary arrangements were made for time to occur, but each blames the other for the lack of progression of the father’s supervised time.
Both agree there was a chance brief encounter in the street in May 2016, when the father met the respondent and the child. The father estimated this lasted less than five minutes. During 2017 there was minimal text messaging between the parents, and no contact thereafter.
In December 2017, the paternal grandmother obtained a Child Arrangements Order from the Family Court at City F, which enabled her to spend time with the child at least three times per year. The father was named as a respondent in those proceedings but did not participate.
In late 2018, the father commenced a six week drug and alcohol rehabilitation programme. It is the father’s evidence that he been sober since leaving rehab, while the respondent states she saw the father drunk in late 2019.
On 19 July 2019, the paternal grandmother sought to renew her previous Child Arrangements Order in the Family Court at City F.
Her application was listed before the court on 6 September 2019. On that day, leave was granted for the paternal grandmother’s application to be filed and the matter was adjourned to 14 October 2019. The father attended the hearing and informed the court that he was seeking to commence proceedings to obtain access to the child.
On 11 October 2019, the respondent received an email from the court notifying her that the 14 October 2019 hearing was adjourned to 7 November 2019. The following day, the respondent received news that the maternal grandmother was ill with pneumonia and subsequently booked flights to Australia.
On 15 October 2019, the respondent and the child left the United Kingdom, arriving in Australia on 17 October 2019. She did not inform the father or the court of her intentions.
At the City F Family Court hearing on 7 November 2019, the respondent arranged for a McKenzie friend appear on her behalf, who informed the court she was residing in Australia with the child and the maternal grandmother and would be returning to the United Kingdom in mid-December. The respondent subsequently cancelled her flight in January 2020 to provide further care for the maternal grandmother.
On 3 January 2020, the father submitted an application for a Child Arrangements Order in the United Kingdom, which was linked to the application of the paternal grandmother. These were listed to a court hearing date in January and February 2020 and were vacated due to non-attendance of the respondent. The father asserts these applications were adjourned indefinitely until the respondent could be located.
On 2 February 2020, the respondent and child travelled to New Zealand to visit the maternal aunts and to escape the NSW bushfires. Due to the Covid-19 pandemic and subsequent lockdowns, the respondent and child were unable to return to Australia until December 2020. The child was enrolled at G School until returning to Sydney.
On 6 July 2020, the respondent sold her house in the United Kingdom after it was placed on the market for sale in January 2020. The father was informed of this when visiting the house in late August 2020.
On 11 September 2020, the father completed an application with the United Kingdom Central Authority and on 22 September 2020, the Australian Central Authority informed the United Kingdom Central Authority that the child was offshore and had travelled to New Zealand.
On 25 September 2020, the father’s application was forwarded to the New Zealand Central Authority, who on 14 December 2020, stated that a potential address for the respondent had been identified.
On 22 December 2020, the respondent and child travelled to Australia, unbeknown to either Central Authority at the time.
The child was enrolled at H School in Sydney at the commencement of the 2021 school year and commenced residing in a nearby rental flat with her mother in March 2021.
Unsuccessful service attempts were made on the respondent in New Zealand in March 2021 and on 8 April 2021, the New Zealand Central Authority received information from the process server that the respondent had left New Zealand for Australia, which was then confirmed on 23 April 2021.
On 7 May 2021, the father’s application was re-sent to the Australian Central Authority and the Form 2 Application was subsequently filed on 10 November 2021.
Ex-parte orders were made by this Court on 12 November 2021, followed by two further adjournments on 26 November 2021 and 10 December 2021 whilst there were difficulties affecting service on the respondent.
Service was ultimately affected in late January 2022 and a Form 2A Response was filed on 4 February 2022.
The trial commenced on 9 May 2022.
JURISDICTIONAL FACTS
The respondent conceded the father had rights of custody (within the meaning of reg 4) at the time of the child’s removal from the United Kingdom. According to counsel for the State Central Authority, those rights arise from s 4 of the Children Act 1989 (UK) (“Children Act”) which provides for a father who is not married to a child’s mother, to acquire parental responsibility if he becomes registered as the child’s father (s 4(1)(a)).
Parental responsibility is defined for the purposes of the Children Act as “all the rights, duties, powers, responsibilities and authority which by law a parent of the child has in relation to the child and his property” (s 3(1)). Section 13 of the Children Act has the effect that where a Child Arrangements Order is in force which includes arrangements relating to with whom the child is to live, no person may remove the child from the United Kingdom without either the written consent of every person with parental responsibility, or the leave of the court. Such right is a “right of veto”.
The orders made on 6 December 2017 in the Family Court at City F, remained extant, and includes an order that the child shall live with the mother. Section 13 of the Children Act is engaged by that order and removal of the child from the United Kingdom requires either the father’s consent or leave of the court. A warning to that effect was endorsed on the order itself, noting that a breach would be a criminal offence. A copy of the order is Exhibit 1–3 of the Form 2 Application filed by the State Central Authority on 10 November 2021.
In Re D (a Child) (Abduction: Rights of Custody) [2007] 1 AC 619 at [37], Baroness Hale concluded that the “right of veto” which arises by operation of s 13 of the Children Act, would amount to rights of custody for the purpose of the Convention.
It is therefore apparent the father retained rights of custody arising from his parental responsibility for the child which include the right of veto as to the child’s removal from the United Kingdom.
As to whether the father was actually exercising rights of custody, or would have if the child had not been removed, the State Central Authority contented that the father’s previous exercised right of veto in 2015 was of critical relevance. The father did not consent to the child being removed for six months, as was the respondent’s intention, but rather agreed to her overseas travel to Australia for a period of three months. The reduction in duration of the holiday demonstrated that the father had been actually exercising his rights of custody in 2015 and also that he was likely to do so in 2019, had he been consulted.
Furthermore, immediately prior to the child’s removal in 2019, the father attended court on 6 September 2019 when his mother’s application was listed before the Family Court at City F. The transcript of proceedings on that day is exhibit A to the affidavit of Mr D filed 28 March 2021, which demonstrates the father advised the court he intended to make his own application for contact with the child, which would have required the child’s continued presence in the United Kingdom. It was submitted that the context of the father’s intended application to the court provides strong support for the contention that the father would have exercised his rights of custody, and declined to consent to the child moving to Australia, if the child had not been removed from the United Kingdom by the respondent in October 2019.
As to the relevant jurisdictional facts, the respondent conceded the child was habitually resident in the United Kingdom at the time of removal on 15 October 2019, the father was not aware of the removal at that time, he did not consent to her removal and the father had rights of custody (within the meaning of reg 4) at the time of the child’s removal from the United Kingdom. However, the removal of the child was not wrongful as the State Central Authority had failed to discharge its onus (reg 16(1A)(e)(i) and (ii)) and the regulatory exception reg 16(3)(a)(i) applies, as the father was not actually exercising rights of custody in relation to the child, nor would he have done so, if the child had not been removed.
The respondent contended that at the time of the child’s removal on 15 October 2019, the father has not seen the child since May 2016, had not sought to contact the respondent in relation to seeing the child, had not made arrangements for contact centre visitation and had not made any application to the courts to spend time with the child. It was not possible to conclude the father had been exercising his rights of custody in relation to the child, in the context of such a long period of absence from the child’s life.
The father’s asserted exercise of a right of veto in 2015 with respect to the length of the child’s holiday in Australia at that time, is not an indication that he was very likely to exercise his rights of custody again. That is because four years had elapsed since the father declined to agree to the six month holiday in 2015 and the child’s removal from the United Kingdom in 2019. During the intervening period, the father had not done anything to exercise his rights of custody save for minimal and insufficient efforts during 2016 to arrange for supervised contact with the child. In the circumstances, it is not possible to infer that it was likely that the father would have exercised his rights of custody had the child not been removed.
The respondent accepts that the father indicated to the Family Court at City F on 6 September 2019 that he was intending to make an application for contact with the child. However, the mere expression of an intention to seek orders for contact with the child should not satisfy the court that the father would have exercised his rights of custody, particularly in circumstances where he had failed to take any reasonable attempts to have contact with the child for many years. It was submitted by the respondent that, on balance, it was more likely the father would have failed to take any steps to exercise his rights of custody in relation to the child, had the child remained in the United Kingdom, as he had failed to do so for a number of years.
It is clear the father took scant steps to have contact with the child for over five years, and according to his own evidence, he may have been unable to do so because of his drug and alcohol addiction, which resumed from 2014 until late 2018. I accept there was some nominal attempt to engage a contact centre during 2016 or 2017, with each parent blaming the other for inaction. The father’s own evidence that he has little clear recollection of events between 2014 and 2018, does not enable me to conclude the respondent was responsible for the lack of progress with supervised time. The father conceded he was aware of his mother’s proceedings to spend time with the child in 2017 and he made no attempt to join in those proceedings. He also conceded that until September 2019 he had made no attempt to join in his mother’s proceedings, although he was aware the earlier order providing for time between the paternal grandmother and the child would expire in 2019. The only formal attempt the father made to spend time with his daughter was his attendance at the Family Court at City F in September 2019, where he expressed an intention to involve himself in the proceedings. It was not until early 2020 that the father filed an application in the Family Court at City F.
The father’s evidence during cross-examination was that he telephoned the child’s primary school in the United Kingdom at the end of October 2019 and was informed although the child was still registered at the school, she was not attending. He also conceded he was aware the maternal grandmother and uncle lived in Australia, the respondent had no close relatives in the United Kingdom and he was aware from March 2021 that the respondent and child lived in a flat in Suburb J and the child was enrolled in the local primary school. The father did not make any attempts to contact the respondent subsequent to the child’s departure.
I accept the submissions of the respondent about the father’s protracted inaction for six or so years, which are referred to in the preceding paragraphs. Having regard to his lack of involvement in the child’s life, it is not possible to extrapolate that because he exercised a right of veto in 2015, he would be likely to do so again in 2019, particularly when he knew of his mother’s proceedings in the Family Court at City F in both 2017 and 2019.
At the time of the child’s removal from the United Kingdom in October 2019, I am not satisfied the father was actually exercising rights of custody or would have exercised his rights of custody had the child not been removed in October 2019. I am unable to find that the child’s removal from the United Kingdom on 15 October 2019 was wrongful.
However, if I am mistaken in my finding that the child’s removal was not wrongful, I will now turn to whether the child is settled in her new environment.
REGULATION 16(2)
The respondent relies on reg 16(2) that the child has settled in her new environment, to oppose the application for her return to the United Kingdom. She bears the onus of proof in this regard. The respondent has satisfied that the application was filed more than one year after the day on which the child was removed to Australia (reg 16(2)(b)) as the child was removed from the United Kingdom on 15 October 2019 and first arrived in Australia on 17 October 2019. The Form 2 Application was subsequently filed on 10 November 2021.
If the Court is not satisfied that the respondent has established this burden, the Court must make an order for return, subject to any regulatory exceptions to return being proved. On the contrary, if the Court finds that the child has “settled” in her new environment, pursuant to reg 16(2)(c), the regulations cease to apply and the application must be dismissed. There is no remaining discretion to consider ordering return in circumstances where it has been established that the child is well-settled: Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165; Department of Family and Community Services & Magoulas [2018] FamCA 102.
Both parties agreed the assessment as to whether the child is well-settled is to be made at the time at which the Court makes its decision, given that reg 16(2)(c) is expressed in the present tense. The parties also agreed that the term “settled” is to be given its ordinary and natural meaning: State Central Authority & Castillo [2015] FamCA 792. In that matter, Bennett J further noted:
178.… In the case of Director General, Department of Community Services & MC, the Full Court, comprising Nicholson CJ and Holden and Dessau JJ, considered statements as to the law from the United Kingdom and Australia and, in not following what their Honours identified to be the state of the law in the United Kingdom, concluded that:
The test, and the only test to be applied, is whether the children have settled in their new environment. That test is to be applied either at the time of the application being made or at the time of trial. It is unnecessary to consider which date is the relevant one in the context of this case, given the short period between the two dates.
179.I note their Honours’ obiter views about the time at which the children’s circumstances must be assessed. My view is, with respect, that the Court stands to be satisfied or not satisfied that a child has become settled in Australia at the time of its decision. The trial subsists until a decision is delivered because, until the final orders are entered, any party can apply to reopen his or her case for the purpose of making further submissions or adducing further evidence. Notably, that did not occur in this case notwithstanding the submission by the independent children’s lawyer as to an alternative date of alleged wrongful retention.
180.Previous decisions of this Court, notably, Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842 and also in Director-General, Department of Community Services & Kells (2009) 233 FLR 256 at 259 stand as authority for the proposition that the following factors will be relevant to determining whether or not a child is settled:
(a)the physical element of relating to, being established in a community and an environment;
(b) an emotional constituent denoting security and stability; and
(c) educational aspects.
I regard those observations to be sound.
181.It was submitted for the [respondent], and supported by the independent children’s lawyer, that the onus of establishing that the children are settled is not a heavy one; rather it requires evidence that the children are settled as a matter of fact on the balance of probabilities. I agree.
(Citations omitted)
The respondent and the child arrived in Sydney, Australia in October 2019, where they remained until early 2020. The respondent travelled to Australia to care for her mother who had been hospitalised. Return fights had initially been booked for 4 November 2019, however the respondent did not return to the United Kingdom on the intended date, due to both her mother and brother requiring her additional assistance.
In February 2020, she and the child travelled to New Zealand to visit her sister for an intended four week holiday. The impetus for the holiday were the bushfires in NSW. Due to the onset of Covid-19 in March 2020, the respondent and the child were unable to return to Australia. Whilst in New Zealand, the child was enrolled at G School, which she attended until her return to Sydney in December 2020.
Upon returning to Australia, the respondent and the child initially resided with her brother in Suburb K for approximately eight weeks, with the maternal grandmother in Suburb K for two weeks and thereafter moved into a rental flat in Suburb K, where they continue to reside.
The child has been enrolled in H School since the beginning of 2021 where she has performed both well academically and creatively. The child is registered with a general practitioner in Suburb K and has many close friends and close relationships with family in Australia, including the maternal grandmother, maternal uncle and his fiancé. She has an active life with many interests, participates in sports and other community activities including outdoor activities and is supported by the respondent and her family.
The respondent’s evidence was that the child lives a very happy public life surrounded by her family and friends in a supportive, stable and loving environment. Her psychological and emotional needs are met by the respondent, extended family and friends. She is nurtured, nourished, educated, housed and care for in Sydney and is settled in her environment. I accept that evidence.
The State Central Authority contended that the respondent had sought to evade detection and had attempted to conceal herself and the child, which impacts on the time limit in reg 16(2)(b). Counsel for the State Central Authority relied upon Cannon v Cannon [2004] EWCA Civ 1330 (“Cannon v Cannon”) and Simpson v Hamilton [2019] NZCA 579 (“Simpson v Hamilton”). It was asserted the difficulties the State Central Authority had in affecting service on the respondent demonstrated her attempts to evade detection by the authorities, as did her failure to contact the UK Family Court subsequent to November 2019. The respondent was cross-examined about the attendance of a process server at her home and I accept her evidence that the child was ill during part of that time and that she was not inclined to open a door to a stranger. I also accept her evidence that she had no intention to, nor made any attempts to conceal herself from authorities and evade detection and in November 2019 she advised the UK Family Court she and the child were not in the United Kingdom, as she was looking after her ill mother. In the context of severe international travel restrictions due to the Covid-19 pandemic, which impacted the respondent’s capacity to travel and leave New Zealand, I do not consider her failure to contact a court in the United Kingdom during her enforced stay in New Zealand, as particularly unusual, sinister or an attempt to evade detection. I also accept her evidence that her email addresses, which she continues to use, were known to the father and he made no attempt to email or contact her, when he could have done so.
The respondent contends and I accept that submission, the strict time limit (reg 16(2)(b)) cannot be extended pursuant to any equitable tolling in circumstances of purported concealment or prevention of an application being made. Her counsel relied upon the following passage of Bennett J in State Central Authority & Hajjar [2010] FamCA 648:
133.Tolling has not been followed in Australia. For all the confusion that the wording of reg.16(2) may entail vis-à-vis the dating of a wrongful removal or retention, it does not countenance disregarding or subtracting from the 12 month period any period for which the child has been concealed or an application could not be made. Indeed, the 1980 Convention does not envisage tolling insofar as the time limit of 12 months is concerned. The 12-month time limit is expressed without qualification as to the amenity of the time. It involves an uncomplicated application of a time limit after which a child who is assessed to have become settled will not be returned under the auspices of the 1980 Convention.
The authorities relied upon by the State Central Authority may be readily distinguished from the present case. The facts of both Cannon v Cannon and Simpson v Hamilton are vastly different and involve active concealment, subterfuge and life as a fugitive from justice, which is not the case in this matter. I do not accept the submission of counsel for the State Central Authority that either case is relevant to the current case. It is plain that the respondent and the child both lived public lives and were easily traceable, had the father sought to ascertain their whereabouts.
I also reject the contention that because the child lived both in Australia and New Zealand in 2019 and 2020, her life was unsettled. In March 2020, the respondent and the child had no choice, other than to remain in New Zealand, as international travel was restricted because of the Covid-19 pandemic. The child has lived continuously in Sydney since December 2020, in the same premises since early 2021 and has continuously attended the same school since early 2021. It is difficult to contemplate how the child could be regarded as other than settled in her environment, surrounded by her primary carer, her mother, maternal family members and an established friendship network.
For the reasons referred to in the preceding paragraphs, I find that the application of the State Central Authority was filed after the regulatory 12 month period and that the respondent has satisfied the onus to establish the child is settled in her new environment, as required by reg 16(2).
Accordingly, the application of the State Central Authority filed 10 November 2021 will be dismissed.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 30 May 2022
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