Secretary, Department of Family and Community Services & Padwa
[2016] FamCAFC 57
•15 April 2016
FAMILY COURT OF AUSTRALIA
| SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & PADWA | [2016] FamCAFC 57 |
| FAMILY LAW – APPEAL – ABDUCTION – CONVENTION – REGULATIONS – Where the trial judge found the child was habitually resident in Indonesia rather than the Netherlands immediately prior to her retention in Australia – Where the trial judge found – apparently as an alternative- that the child could have two habitual residences – Where the Full Court held that the trial judge failed to apply the correct test for determining the child’s habitual resident immediately prior to her retention in Australia – Where the Full Court considered the Abduction Convention was properly invoked upon the child’s retention in Australia as a Convention Country – Appeal allowed – Orders set aside – Orders made to provide for the return of the child to the Netherlands. |
| A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and ors intervening) [2013] UKSC 60 |
| Convention on the Civil Aspects of International Child Abduction |
Family Law (Child Abduction) Regulations 1986 (Cth)
| APPELLANT: | Secretary, Department of Family and Community Services |
| RESPONDENT: | Ms Padwa |
| FILE NUMBER: | SYC | 8533 | of | 2015 |
| APPEAL NUMBER: | EA | 42 | of | 2016 |
| DATE DELIVERED: | 15 April 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Murphy and Kent JJ |
| HEARING DATE: | 5 April 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 March 2016 |
| LOWER COURT MNC: | [2016] FamCA 215 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr White SC with Ms Hartstein |
| SOLICITOR FOR THE APPELLANT: | Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Williams |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Family Lawyers |
Orders made on 15 April 2016 and amended pursuant to
r 17.02 of the Family Law Rules 2004 on 18 April 2016
Leave is granted to the appellant to rely on the amended grounds of appeal provided at the hearing, save for Ground 2(a) which is not pressed, on the appellant's undertaking to file an Amended Notice of Appeal in accordance with the leave granted.
Leave is granted to the appellant to rely on the further summary of argument provided at the hearing, save for those parts directed to Ground 2(a).
The appeal be allowed.
The orders made by the Honourable Justice Le Poer Trench on 24 March 2016 be set aside.
The application of the Secretary, Department of Family and Community Services filed 24 December 2015 be granted.
The Appellant and the Respondent make such arrangements as are necessary to ensure the departure of the child, K, (born October 2009) from Australia to return to the Netherlands in the company of the child’s father, Mr S, within fourteen (14) days from the date of these orders pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
The Registrar of the Family Court of Australia forthwith release all passports and air tickets of the child, K, (born October 2009) to Mr G, solicitor for the Appellant, in order that the same may be provided to the child’s father, Mr S.
Subparagraph 2 of paragraph 3 of the order dated 24 December 2015 be varied only in so far as it is necessary to allow the child, K, (born October 2009) to depart from the Commonwealth of Australia in accordance with
Order 4Order 6 above, and the Australian Federal Police give effect to the said variation.Following the departure of the child, K, (born October 2009) from the Commonwealth of Australia for the Netherlands the Australian Federal Police remove the name of the child, K, (born October 2009) from the Watchlist system in operation at all Australian international arrival and departure points as soon as practicable.
Following the departure of the child, K, (born October 2009) from the jurisdiction of the Commonwealth of Australia in accordance with
Order 4Order 6, all other orders made by the Court in relation to this matter be discharged.The Appellant Central Authority serve sealed copies of these orders upon the Commissioner, Australian Federal Police.
There be liberty to restore this matter to a single justice of the Court upon twenty-four (24) hours’ notice to the Respondent as to the implementation of the return order.
Each party bear their own costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Family and Community Services & Padwa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 42 of 2016
File Number: SYC 8533 of 2015
| Secretary, Department of Family and Community Services |
Appellant
And
| Ms Padwa |
Respondent
REASONS FOR JUDGMENT
K (“the child”) was born in the Netherlands in October 2009. Her father, Mr S, lives in the Netherlands; her mother, Ms Padwa, in Indonesia. In late 2015 the father permitted the child, who had been living with him in the Netherlands, to travel to Indonesia for nine days between 17 and 25 October to visit her mother. On the latter date, the mother advised the father that she would not return the child.
On that date, the child was in Indonesia with her mother. That action by the mother resulted in the father commencing proceedings in the Netherlands for the Dutch equivalent of parenting orders. Indonesia is not a signatory to the Convention on the Civil Aspects of International Child Abduction concluded at the Hague on 25 October 1980 (“the Convention”).
On 19 December 2015, the mother, her new husband and the child travelled to Australia. The father took action under the Convention and, on 24 December 2015, the Central Authority filed an application prescribed by the Family Law (Child Abduction) Regulations 1986 (Cth)[1] (“the Regulations”) seeking the return of the child to the Netherlands.
[1] The Regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth) and give effect to the Convention which is set out in Schedule 1 of the Regulations.
On 24 March 2016, Le Poer Trench J dismissed the Central Authority’s application. The Central Authority now appeals that decision.
The primary basis of his Honour’s order dismissing the application was that the child was not habitually resident in the Netherlands immediately prior to her retention in Indonesia or Australia. That determination is the sole focus of this appeal, albeit that the Central Authority’s challenge has additional sub-elements including, for example, an assertion that his Honour took account of irrelevant considerations in reaching that decision.
On 24 December 2015, orders were made in the Family Court of Australia
ex parte which restrained the mother from removing the child from Australia pending the determination of the proceedings. Following the dismissal of the Central Authority’s application on 24 March 2016 and the discharge of the orders made on 24 December 2015, the Central Authority obtained an order suspending discharge of the orders placing the child on the Airport Watch List and retention by the Court of the child’s Dutch and Indonesian passports pending the hearing and determination of this appeal.
The application under the Convention was heard by Le Poer Trench J over four days in February and March 2016 and judgment was delivered within two weeks. Upon filing a notice of appeal on 31 March 2016, this matter was listed for hearing before the Full Court on 5 April 2016.
Applications under the Convention should always be dealt with expeditiously but particular urgency arises from the fact that the mother had to return to Indonesia to care for her other two children and the child is now living with the mother’s Australian mother-in-law and not with either parent.
For the reasons which follow we are of the view that his Honour erred in law in failing to apply the correct test for determining whether the child was habitually resident in the Netherlands immediately prior to her retention in Australia on 19 December 2015.[2] We consider that the only conclusion reasonably open to his Honour on the evidence before him (and reasonably open to us as at the time of the hearing of the appeal) was that the child was habitually resident in the Netherlands on that date. Aside from the question of habitual residence, it is not in issue that each of the requirements in reg 16(1A) are met and no defences were raised before his Honour and none are sought to be agitated before us. The consequence is that we must order the return of the child to the Netherlands[3] and an order to that effect will be made together with consequential orders giving effect to that order.
[2] Reg 16(1A)(b).
[3] Reg 16(1).
WHAT ISSUES ARISE ON THE APPEAL?
There was only one issue below: was the child habitually resident in the Netherlands immediately prior to her retention in Australia on 19 December 2015?[4] His Honour’s primary finding was that she was not and that finding formed the basis for dismissing the application.
[4] Reg 16(1A)(b).
Grounds 1 to 6 assert legal errors in the determination of habitual residence. [5] Ground 6 is a subset of the previous five grounds and asserts that irrelevant material was taken into account by his Honour, and that he also failed to take into account relevant matters.
[5] Consequent upon submissions made before us and concessions made on behalf of the Central Authority, there
was no objection to an amendment to the grounds which excluded a proposed additional ground directed to the
correctness of a finding that a child could have two habitual places of residence at the same time. An amended
notice of appeal was filed on 5 April 2016.
Grounds 7, 8 and 9 raise evidentiary issues in relation to which it was said that his Honour erred.
The determinative issue in the appeal is whether his Honour applied the correct test in determining the question of habitual residence. We propose to deal with the first six grounds under the general rubric of the application of the incorrect test of habitual residence, which is how the appeal was argued.
His Honour found, correctly in our view as Indonesia is not a Convention country:
6.… By application of Regulation 16(1A)(b) the child could only be found to have been “wrongfully retained” if it is established that she was habitually resident in The Netherlands on or after 19 December 2015, notwithstanding she had been living in Indonesia with her mother since October 2015.
Subsequently, his Honour posed for himself a secondary question: whether the child was habitually resident in the Netherlands and at the same time also habitually resident in Indonesia immediately before removal to Australia.
Notwithstanding posing for himself those questions at the outset of the reasons, his Honour’s focus plainly shifts as the reasons, which extend over 487 paragraphs and 98 pages, progress. Much later in the reasons his Honour poses for himself the wrong question/s in arriving at his conclusion as to habitual residence. Shortly explained, by reason of the manner in which the case was conducted before him, his Honour traversed a plethora of factual matters which, with great respect, we consider to be wholly irrelevant to the central question which his Honour needed to answer.
That process led to his Honour examining in great detail the facts and circumstances of the parties and child from the birth of the child leading up to 4 November 2013. Between 6 July 2010 and 4 November 2013, his Honour found (uncontroversially on this appeal) that the mother and child had lived in Indonesia “for approximately 24 months and with both parents in the Netherlands for approximately 15 months”.[6] Having made that finding, his Honour records:
429.… Given those dates; given that the child (a citizen of both Indonesia and The Netherlands) was at all times living with the [the mother] (as the only constant parent attending to her care), an Indonesian citizen; given that there was no controversy between the parents as to where the child lived from time to time; given that the father also lived with the [mother] and the child for a significant proportion of that time; the question posed is what would the habitual residence of the child have been at November 2013?
[6] Reasons at [429].
What his Honour there refers to as “the question posed” is important to his Honour’s subsequent approach and findings.
Having posed the question for himself as to where the child was habitually resident in November 2013, his Honour appeared to answer that question at [430] by finding that the child was:
430.… probably habitually resident in Indonesia (if the amount of time she spent living between the two countries was the determinant) or alternatively she had two habitual residences. There was no suggestion she was not living a settled life in each country. If attendance at an educational facility is the determinant then again Indonesia wins the day as I accept the [mother’s] evidence that the child attended pre-school in Indonesia.
His Honour then went on to pose another question at [431] which was, “[w]hat then has changed since November 2013 which might impact upon the determination of where the child is a habitual resident?” It seems that his Honour considered that date important because, as his Honour found elsewhere in the reasons (again uncontroversially in this appeal), after November 2013, the child has spent more time living with her father in the Netherlands and attending school there than she has spent outside of the Netherlands.
However, commencing at [436] his Honour said:
436.The question then requiring determination is: Have the changed circumstance, since November 2013 changed the child’s habitual residence?
437.In my view there has been no change to her habitual residence during that time. [The child] either remains as a habitual resident of Indonesia or alternatively she remains a habitual resident of each of Indonesia and The Netherlands.
First, we are unable to see how those seemingly inconsistent paragraphs can sit together. Second, it is difficult to discern precisely what finding was being made. It can be seen that his Honour has approached the essential question by inquiring into the child’s habitual residence on a date more than two years prior to the asserted date of retention and, having sought to make that finding, posed an additional question as to whether habitual residence at that date has changed. Despite the questions posed at the outset of the reasons, nowhere in his Honour’s reasons thereafter does his Honour return to the question which reg 16(1A)(b) required him to ask in the circumstances of this case.
Apart from that central error, his Honour’s findings in respect of habitual residence as at November 2013 are themselves attended by error.
First, his Honour found that the child was “probably” habitually resident in Indonesia at that date.[7] Second, that finding appears to have been based on but one criterion (time spent) about which, in any event, it is not clear that his Honour made a concluded finding. Thirdly, his Honour said that the child was “probably habitually resident” in Indonesia at that time “if the amount of time she spent living between the two countries was the determinant”.[8] Leaving aside the fact that the finding is in any event conditional, binding authority makes it plain that amount of time is not the determinant.
[7] Reasons at [429] and [430].
[8] Reasons at [430] (emphasis added).
In a similar vein, a conditional finding attends the rejection of an alternative postulated by his Honour that the child had two places of habitual residence at the same time. However, having made a finding that there were potentially two habitual residences, his Honour went on at [430] to reject the alternative finding by saying:
430.… If attendance at an educational facility is the determinant then again Indonesia wins the day as I accept the [mother’s] evidence that the child attended pre-school in Indonesia.
Again, it appears that a separate consideration is identified as “the determinant”.
Having identified the premise that the child was habitually resident in Indonesia in November 2013 and posited the inquiry as being whether that had changed, his Honour appears to have predominated the parties’ intentions as determinative of the conclusion that there had been no change to habitual residence. His Honour said:
468.… the father, by his actions and words, deliberately intended to mislead the [mother] into believing he was proposing to adhere to the original agreement reached between them and have [the child] schooled in Indonesia as soon as she had completed the first year of her formal schooling in The Netherlands together with any extended period to which the [mother] would agree.
469.It was in reliance upon the word of the father given in the agreement that the [mother] joined in the action necessary to have the agreement implemented.
470.To the extent that it is necessary to find, I find [the child] was settled while in the care of the father and attending school in The Netherlands. She attended school there and I accept she was engaged in activities and relationships in that time.
471.The fact that [the child] was settled in The Netherlands during her time in school did not alter the settled environment she had enjoyed and continued to enjoy in Jakarta. The actual amount of time she spent in Jakarta, although less than it had been before 2013, did not change anything for the child so far as the Jakarta environment is concerned.
His Honour then considered the intentions of the parents and said:
473.The habitual residence of [the child] as a young child is to a degree determined by the intentions of parents. The extent of the degree of impact is governed by the findings of fact by the court.
474.In this case the father has his habitual residence in The Netherlands. The [mother] has her habitual residence in Indonesia. The parents, by construction, agreed that through the agreement for [the child] to spend her first year of formal education in The Netherlands, together with any subsequent agreed extension thereto, would not change their joint intention that [the child] would continue to live and be a habitual resident of Indonesia. As such on 25 October 2015 and on any subsequent date, it could not be said [the child] had been “wrongfully retained” from a convention country as is a requirement for the Regulation (16(1A)(b)) to operate.
(emphasis added)
We find it impossible to reconcile his Honour’s finding in [474] as to “joint intention” with what appeared to be his Honour’s earlier expressed conclusion as to the parents’ intentions appearing at [438]. His Honour said:
438.If the parents’ intentions are important in the determination of habitual residence, then I find the [the mother] has at all times considered herself and the child, to be habitual residents of Indonesia. I find the father has probably regarded the child as being a habitual resident of The Netherlands since the conclusion of 2013, however, he knew that [the child] had to be returned to Indonesia to live with the [mother] under the terms of their agreement.
We note in this context the observations made by the High Court in LKv D.G. Department of Community Services (2009) 232 CLR 582 (“LK”) (at [29] and following) as to the possibility of ambiguity of intention being a factor in examining each parents’ intention at any given time.
WHAT PRINCIPLES GOVERNED THE APPLICATION?
The High Court (French CJ, Gummow, Hayne, Heydon & Kiefel JJ) dealt with the question of habitual residence under the Regulations and the Convention in LK. Having (at [21]) noted that the explanatory report on the Convention described habitual residence as a “question of pure fact, ‘differing in that respect from domicile’”, at [22] the High Court said:
22.To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
(footnote omitted)
In Re B (A Child)(Habitual Residence: Inherent Jurisdiction),[9] Lady Hale and Lord Toulson supporting Lord Wilson’s decision said:
57.We fully agree with Lord Wilson’s reasoning and conclusion on the issue of habitual residence. He has described the identification of the child’s habitual residence as overarchingly a question of fact (para. 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law because the concept is a matter of law but its application is a matter of fact …
[9] [2016] UKSC 4.
Returning to LK, the High Court said:
23.Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
27.When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
Purpose and intention
28.Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29.First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
…
34.… No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35.… to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
(emphasis added)
In the course of its reasons in LK the High Court considered what was said by the Court of Appeal of New Zealand in Punter v Secretary for Justice (“Punter”).[10] The High Court said:
44.… As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.
[10] [2007] 1 NZLR 40.
The shift away from the concentration on shared parental intention in determining habitual residence is evident from the UK Supreme Court’s decision in A v A (Children: Habitual Residence)(Reunite International Child Abduction Centre and ors intervening),[11] AR v RN (Habitual Residence)[12] and Re B (A Child) (Habitual Residence) (above). Although not binding on us, uniformity with decisions made in other jurisdictions interpreting the same Convention is desirable at the very least, and the UK jurisprudence is consistent with what the High Court has decided in LK.
[11] [2013] UKSC 60.
[12] [2015] UKSC 35.
Crucially, the High Court went on to say in LK:
45.Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
(footnotes omitted)
It is of considerable importance that the High Court justices themselves highlighted the words “from the child’s perspective”.
In determining habitual residence the ultimate question for the trial judge was whether, immediately prior to 19 December 2015, the child’s presence in the Netherlands had a degree of settled purpose from the child’s perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident in the Netherlands.
THE TRIAL JUDGE’S DETERMINATION
As will be clear from what we have already said, the vast bulk of his Honour’s judgment was directed to answering the question of where the child was habitually resident in November 2013 and whether that habitual residence had changed.
At [474] of his reasons for judgment the trial judge found that the parents had a settled intention in 2013 that the child would spend her first year of formal education in the Netherlands, together with any subsequent extension agreed thereto and that this would not “change their joint intention that [the child] would continue to live and be a habitual resident of Indonesia.” In so finding his Honour can be seen to be elevating parental intention as having determinative significance or “controlling weight” in determining habitual residence. In doing so his Honour determined that the mother intended that the child live in Indonesia (or that both parties determined that the child should live in Indonesia), that the child was settled in Indonesia in late 2013 and that, notwithstanding the practical arrangements for the child, her habitual residence never changed from Indonesia.
Even if, which we respectfully doubt, that approach could have provided a path to the ultimate distillation and resolution of the proper question (where was the child habitually resident immediately before her retention in Australia on and after 19 December 2015) his Honour in any event asked the wrong questions in respect of November 2013 so as to arrive at an erroneous conclusion.
More importantly, however, the pursuit of that approach by his Honour led him, with respect, into further error by reason of his Honour’s predominant focus on the parties’ intentions and his judgment of their respective conduct (which party’s deceit was “worse” than the other party’s deceit) to the exclusion of facts, largely uncontroversial, which formed the “wide variety of circumstances that bear upon” the question which his Honour needed to answer. What his Honour did not do, was to address himself to a broad factual inquiry from the child’s perspective as to where the child was settled immediately prior to 19 December 2015 as required by binding authority. In short, we consider that his Honour fell into the very error identified by the High Court in LK.
In addition to, or perhaps as a factor in, the trial judge giving controlling weight to the mother’s intentions for the child it seems that his Honour placed undue weight upon historical parental conduct and the conduct of the father in particular.
We consider that the trial judge’s apparent emphasis or focus upon what he described as the father’s deception or misleading conduct from time to time in securing the mother’s consent or agreement to that arrangement distracted his Honour from properly focusing upon the relevant circumstances from the child’s perspective in determining the question of habitual residence.
That his Honour distracted himself by elevating emphasis upon the father’s conduct appears from many paragraphs of his Honour’s lengthy reasons but is perhaps best illustrated by what his Honour stated at [475] with reference to the father as follows:
475.The normal application of law governing the way in which parties in this country conduct themselves, their commerce and their ordinary aspects of community life, must apply to the determination of matters under the Regulation to the extent that such considerations are not specifically excluded. People who lure others into bargains which require them to alter their positions to their detriment only to find they did so as part of a ruse to achieve an unintended outcome for the advantage of the deceiver, ought not have the advantage of application of Regulations, such as those currently under consideration, where there is available to the court to find alternate remedies which do not cater to such despicable behaviour.
We leave to one side that his Honour gave no similar characterisation to the mother’s conduct in securing the father’s agreement to the child travelling to Indonesia (a non-Convention country) on 17 October 2015 for what the father was led to believe by the mother was to be a short holiday period, when in fact the mother had no intention of returning the child.
More importantly, from the child’s perspective, she left her father and the Netherlands on 17 October 2015 expecting to spend her short school holiday period with the mother in Indonesia and expecting to return and resume her school attendance. Instead she was retained by the mother in Indonesia and then Australia.
The reasons for judgment viewed as a whole plainly evidence, in our respectful view, a predominant and undue emphasis upon issues which may well be highly relevant to a Court determining future parenting arrangements in the child’s best interests, but which were largely or wholly irrelevant to the central question the trial judge had to determine.
Despite the ambit of the proceedings before his Honour and the lengthy reasons, we consider that the facts of the case essential to answering the necessary question which, we repeat, is to be answered from the child’s perspective, were in fact of a narrow ambit and largely uncontroversial.
The background facts meet that description and can be shortly summarised:
a)The child was born in October 2009 in Amsterdam, in the Netherlands. She was aged six at the time of the retention by the mother in Indonesia and later Australia.
b)The mother is an Indonesian citizen and resident in that country. The father is a citizen of the Netherlands and resides in that country.
c)The mother and the father married in October 2007.
d)After the child was born in 2009 she has lived both in Indonesia and the Netherlands. The periods of time during which the child lived in each country up until November 2013 are set out in his Honour’s reasons as follows by reference to the mother’s evidence which, in this respect, appears uncontroversial for present purposes:
429.The [mother] says that from October 2009 (the birth of the child) until 6 July 2010 she lived inside The Netherlands for periods of up to 90 days at a time. Between 15 February 2010 to early July 2010 she and the child lived mainly in [Country Y] although during that time she and the father visited each other from time to time (probably frequently). Then between 6 July 2010 until 4 November 2013 the child lived with the [mother] in Indonesia for approximately 24 months and with both parents in The Netherlands for approximately 15 months …
e)The parties separated in July 2012, were divorced in the Netherlands and entered into a parenting plan agreement in the Netherlands in May 2013.
f)Until November 2013 the child lived with the mother in Indonesia and attended pre-school. She also spent time with both parents in the Netherlands.
g)For most of 2014 and 2015 the child lived with the father in the Netherlands. She commenced school in that country and continued to be schooled there until her retention in Indonesia and then Australia. She spent holidays with the mother. Mostly, that occurred in Indonesia.
h)In October 2014, in Indonesia, the mother gave birth to her second child and in October 2015 she gave birth to her third child. Her current Australian husband is the father of those two children. She currently resides in Jakarta.
i)On 17 October 2015 the child arrived in Indonesia from the Netherlands by agreement between the parents. It is not in doubt that the parties had agreed that the child was to return to the Netherlands on 25 October to re-commence school there. The mother retained the child in Indonesia contrary to that agreement.
j)The child was not returned to the Netherlands on 24 or 25 October 2015 as was agreed would occur.
k)On 18 December 2015 the mother and the child travelled to Australia.
l)While in Australia, the application brought by the Central Authority, the subject of this appeal, was filed and served on the mother.
At [274] of the reasons for judgment, his Honour referred to a text message (which is dated 28 August 2013) in which the mother acknowledged the child herself regarded the Netherlands as “home”. That text message, marked as Exhibit 11 at trial, also refers to time in Indonesia as a “holiday”. The trial judge said the mother “conceded that the Netherlands was the child’s home, although asserting Indonesia was also the child’s home.” This can be seen as emerging from the following passage of transcript:[13]
THE MOTHER: … Unless I have, she cannot come to Indonesia to her home.
MS HARTSTEIN: But it [Indonesia] wasn’t her home, was it?
THE MOTHER: It is. She has two home [sic]. You have to understand she’s half Dutch and half Indonesian. Indonesia is her home and Holland is also her home. That’s why we teach her that [the father’s] place is her home; my mother’s place is her home too …
[13] Transcript of proceedings, 10 March 2016, p 149, line 40 to 45.
Thus when the child began living with the father in the Netherlands in November 2013 and commenced school there she returned to live in a place which she herself already regarded as “home” or “a home”.
Additionally, we can see no controversy on the materials before us in respect of the following circumstances, each and all of which are, in our view, central to an examination of the circumstances from the child’s perspective:
·The child was living primarily with the father and had been in his care in the Netherlands for two years since November 2013. At that time, the child was four years of age.
·That arrangement was pursuant to the agreements or common intention of both parents for the child to commence and attend school in Amsterdam (at [89], [96], [99], [278], [457] and [461]).
·That arrangement saw the father as her primary caregiver and the mother residing in another country situated a significant distance from the Netherlands.
·The child took the important step of commencing school in the Netherlands and did so while in her father’s care.
·For the whole of the period from October 2013 until 26 October 2015 (save for holiday periods agreed between the parents) the child lived with the father in the Netherlands on a full-time basis. She attended school in the Netherlands. She spent short periods of time with her mother during school holidays mostly in Indonesia but also in other places.
·The child’s settled day to day life was spent in the Netherlands and the child attended:
ospeech therapy
odance lessons
osinging lessons; and
oafter school care.
·The child had a network of friends with whom she spent time both at school and outside school hours.
His Honour specifically found at [470] that the child was settled while in the care of her father and was attending school in the Netherlands and engaged in activities and relationships at that time.
We observe that at [44] of LK the High Court quoted from the plurality in Punter where that Court said:
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 para [22], the underlying reality of the connection between the child and the particular state.
We agree with the submission of the Central Authority that the child did not enjoy a settled time in Indonesia from November 2013 onwards. She was only there on holidays, and not every holiday with the mother was spent in Indonesia. The first holiday in Indonesia was in the northern summer holidays from 10 July 2014 to 26 August 2014. The second holiday was over Christmas from 12 December 2014 to 8 January 2015. The third holiday was from 25 April 2015 to 10 May 2015 and the fourth holiday was from 5 July 2015 to 19 July 2015. The final holiday was from 17 October 2015 to 25 October 2015.[14] Leaving aside the other issues we have raised with respect to his Honour’s approach and findings relevant to asserted habitual residence as at November 2013, we consider with respect that his Honour’s finding that the fact that the child was settled in the Netherlands during her time in school did not alter the settled environment she enjoyed and continued to enjoy in Indonesia was against the weight of the evidence and not open to his Honour.
[14] See Annexure C of the mother’s affidavit filed 22 February 2016.
We repeat that the time spent in a particular place is not determinative of itself of the strength of ties to that place and thus of habitual residence, but continuity of place can be an important matter for a child and, as such, is a circumstance to be considered from the child’s perspective. Annexure C to the affidavit of the mother sworn 22 February 2016 contained tables. With two corrections the tables were asserted by the Central Authority, without demur, to indicate that the child spent 575 days in the Netherlands and 113 in Indonesia.
Whatever else might be said about his Honour’s approach, we have, with respect, considerable difficulty in understanding in any event how his Honour reached the conclusion that, even if the child was habitually resident in Indonesia at November 2013, that had not changed by 19 December 2015, when consideration is given to all of the circumstances from the child’s perspective.
In our view, on no view of the evidence was it open to his Honour to find that the child was habitually resident in Indonesia at 19 December 2015.
We consider that the evidence points overwhelmingly to the conclusion that the child was habitually resident in the Netherlands immediately before her retention by the mother. The consequence is that the child must be returned.
THE ALTERNATIVE FINDING
As we have previously indicated, his Honour found, apparently as an alternative, that the child could have two habitual residences.[15]
[15] Reasons at [437] and [483]-[486].
By reference to existing authority of this Court (see In the Marriage of Hanbury-Brown SS & Hanbury-Brown R; Director-General of Community Services)[16] it was not open to his Honour to find that a child could simultaneously have more than one habitual residence at any given time. The High Court’s decision in LK leaves open, however, the possibility that a child may have more than one habitual residence, saying:
25.… it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time...
[16] (1996) FLC 92-670.
However, noting that no ground as pressed seeks to address his Honour’s finding as a matter of law, or to seek to have this Court overturn any earlier decision of this Court, we need say no more about whether his Honour erred in law in so finding.
Yet, an immediate consequence arises even if the child could be habitually resident in both countries; that finding brings with it the conclusion that the child must be returned to the Netherlands. The father had, uncontroversially, rights of custody in the Netherlands. The mother’s retention of the child in Australia on and after 19 December 2015 was in breach of those rights. The father invoked, as he was lawfully entitled to do, the relevant provisions of the Convention and the Central Authority properly took action on his behalf, as is provided for in the Regulations.
The mother argued that his Honour was correct in his finding because, as the child is simultaneously habitually resident in both countries, the retention in Australia cannot be “wrongful” within the meaning of the Regulations. This argument founders because retention in Indonesia on and from 26 October 2015 is in breach of the father’s rights of custody because the failure to return on 25 October 2015 to the Netherlands is contrary to what the two people with rights of custody had agreed. However, it is not “wrongful” within the meaning of the Regulations and the Convention because Indonesia is not a signatory. Upon landing in Australia with the same intention to not return the child, the retention was wrongful because Australia is a signatory to the Convention.
The question which might arise is whether an Australian Court faced with that prospect might need to determine the question of whether Australia should determine the issue by reference to the Regulations or if Australia should determine whether Australia or Indonesia should determine the issues on forum grounds. In our view, the answer lies in reg 16; the child’s presence in Australia on or after 19 December 2015 founded the application of the Convention through the Regulations via properly and regularly invoked proceedings.
In DJL v Central Authority (2000) 201 CLR 226 Callinan J said:
191.I do not overlook that this is a case in which the future of a child is involved. However, the international arrangements and their adoption by this country provide a, indeed the, code for the way in which the future welfare of a child who has been removed from a subscribing country, is to be determined. In this respect the conduct of the appellant is, in a sense, irrelevant. What is relevant of course is that the arrangements under the Convention are not one-sided. They contemplate and require reciprocity, a matter of obvious importance when an Australian child is abducted to another subscribing country. In this case in any event if the appellant's foreshadowed application were to be granted it would only further delay the settlement of this child's welfare, which itself may be damaging to her.
Regulation 16(1A)(b) requires that the child “habitually resided in a convention country” immediately before the child’s removal to or retention in Australia. As submitted by the Central Authority, the regulation does not provide that the child must have habitually resided in only that Convention country. Regulation 16 provides that the retention of a child is wrongful if the person seeking the return of the child has rights of custody and the retention of the child in Australia is in breach of those rights. If the child has two places of habitual residence and one of them is the Netherlands, which is a Convention country, her retention in Australia, in breach of the father’s rights of custody, is nevertheless wrongful within the meaning of reg 16(1A)(b).
None of the cases referred to by the trial judge in discussing this issue are Convention cases. There is no decided case on this point to which we were referred, or which we could find, but in her book The Hague Child Abduction Convention: A Critical Analysis,[17] Rhona Shuz says at p 178:
… [The] Abduction Convention case law has rejected the idea of a dual habitual residence. Courts have expressed the view that the concept of habitual residence is simply not compatible with the notion that there may be two or more such residences and that the Abduction Convention and the Preamble, which refer to the state of a child’s habitual residence in the singular rather than the plural, clearly envisage the child will only have one habitual residence at any one time.
With respect, these arguments are not convincing. Some people do genuinely live in more than one country, moving on a regular basis between their two homes. Artificially finding that only one of those countries is the habitual residence is inconsistent with the factual nature of habitual residence. Indeed, case law in other areas of law has recognised the possibility that a person may have one or more habitual residence. Furthermore, where a child does genuinely have a home in more than one country, it is inappropriate for the Convention to apply to removals or retentions between those two countries. Where the removal or retention is to a third country, the operative habitual residence for the purposes of the Convention will be the state which is requesting the return of the child and so it is irrelevant that there might also be another habitual residence.
[17] Vol 13 in the series Studies in Private International Law published 2013.
Even if the child was simultaneously habitually resident in Indonesia and the Netherlands, the fact that this might result – as between Australia and Indonesia – in proceedings of one sort or another does not affect the rights otherwise regularly invoked under the Convention and the Regulations. Once the Australian Court is seized of the matter properly invoked, its obligation is to apply the relevant regulations. That, in turn, required the Court in this case to make an order returning the child if the requirements were met.
If it was possible for the child to have two places of habitual residence at the same time, as his Honour found, his Honour nevertheless erred in finding that the Convention did not apply.
The remaining grounds of appeal (Grounds 7, 8 and 9) relate to asserted errors by the trial judge in applying various rules of evidence and the denial of procedural fairness in refusing to allow cross-examination to the appellant. Those grounds depend largely on whether the evidence to which they were addressed was, in any event, relevant to the issues which his Honour needed to determine. It is contended that it is because they are relevant to the parties’ individual, and perhaps collective, intention.
As we have already said, we consider his Honour erred in attributing “controlling weight” to the parties’ intentions and more particularly, the mother’s intentions, something plainly evident in our view from his Honour’s findings at, for example, [207]; [438]; [468] and [475] of his Honour’s reasons. While not strictly necessary for our determination, we consider that the evidence the subject of the grounds is irrelevant to the issues which his Honour needed to determine and there is merit in the challenges the subject of those grounds. In particular we are unable to see how the evidence in respect of:
·the parenting agreement and its validity in 2013 and before;
·what his Honour concluded to be deceitful and despicable behaviour by the father;
·the arrangements going back to 2010; and
·the focus on the findings of habitual residence as at November 2013
had relative importance compared to the evidence of the child’s circumstances in the two year period up until December 2015.
CONCLUSION
The appeal must succeed. The orders made by Le Poer Trench J should be set aside.
We have concluded that his Honour ought to have found that the child was habitually resident in the Netherlands immediately before her retention in Australia on 19 December 2015. The facts and circumstances by which we would reach any such decision as at the time of the hearing of the appeal[18] are, as the parties contend, identical.
[18] Allesch v Maunz (2000) 203 CLR 172.
An order should be made that the child return to the Netherlands. We will make orders largely in accordance with the minutes submitted by the Central Authority in the event that this be our conclusion.
COSTS
The Central Authority did not seek an order for costs against the respondent mother in the event the appeal succeeded and is not eligible for the grant of a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth)
(s 14) (“the Costs Act”).
Whilst the respondent mother applied for a costs certificate under the Costs Act and the appeal is to be allowed because of errors of law, in circumstances where the subject matter of the proceedings was wrongful retention of a child by the respondent we decline her application.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Murphy and Kent JJ) delivered on 15 April 2016.
Associate:
Date: 15 April 2016
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