FAMILY COURT OF AUSTRALIA
| SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & PRIM | [2015] FamCA 16 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention application – Application by the Secretary of the Department of Family and Community Services for the return of two children to the United States of America – Whether wrongful retention of children – Whether the children were habitually resident in the United States of America – Whether the father consented to the retention of the children – Whether a return order would expose the children to a grave risk of physical or psychological harm or place them in an intolerable situation – Where the mother suffers from Huntington’s Disease – Where both parents had rights of custody at all relevant times – Where it was found that the children were habitually resident in the USA – Where the father was exercising rights of custody – Where it was found that the children were wrongfully retained in Australia by the mother – Where the mother failed to establish that the father had consented to the children being retained from the USA – Where grave risk of physical or psychological harm or an otherwise intolerable situation is not established – Order for return of the children to the USA – Any conditions of return to be considered separately. | ||
| California Family Code s 3010(a), 7611 Family Law (Child Abduction Convention) Regulations 1986 (Cth): Regulations 4, 15(1)(c), 16(1A), 16(3)(a), 16(3)(b) Hague Convention on the Civil Aspects Of International Child Abduction 1983: Article 13(b) | ||
| ||
| APPLICANT: | Secretary, Department of Family and Community Services | |
| RESPONDENT: | Ms Prim |
| FILE NUMBER: | SYC | 7528 | of | 2014 |
| DATE DELIVERED: | 23 January 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 14 January 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hill |
| SOLICITOR FOR THE APPLICANT: | Legal Services, Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket Family Lawyers |
| INDEPENDENT CHILDRENS LAWYER: | Legal Aid NSW, Sydney Central Family Law |
Orders
The applicant and respondent shall make such arrangements as are necessary to ensure the return of the children, K (female) born … 2001 and B (male) born … 2006 to the United States of America forthwith, in the company of the father and upon such conditions as this Court deems necessary pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
The respondent, Ms Prim shall pay the costs for the return of the children including airfares and any other necessary travel expenses to the United States of America.
The parties are at liberty to apply herein on 24 hours notice to the Court and each other.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Family and Community Services & Prim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7528 of 2014
Secretary, Department of Family and Community Services
Applicant
And
| Ms Prim |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By way of an application filed on 2 December 2014, the Secretary, Department of Family and Community Services (“FACS”) seeks the return to the United States of America (“USA”) of K, born in 2001 and B born in 2006. The applicant contends that the children were wrongfully retained in Australia on 1 September 2014. Ms Prim is the mother of the children and she seeks that the application be dismissed. She says that the children were not habitually resident in the USA on 1 September 2014 and in any event that the father had consented to the children moving to Australia. She says a return to the USA would place the children in an intolerable situation.
The proceedings are brought under the Family Law (Child Abduction Convention) Regulations 1986 (“the Abduction Regulations”) which are the expression in Australian law of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). Australia and the United States of America are signatories to the convention.
THE APPLICATION
The applicant sought the following orders:
Michael Coutts-Trotter, Secretary, Department of Family and Community Services, 4-6 Cavill Avenue, Ashfield NSW 2131 as the New South Wales Central Authority, applies for the following orders:
(1) That until further order the respondent, … also known as [Ms PRIM] born … 1973 his/her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children [K] (female) born … 2001 and [B] (male) born … 2006 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.
(2) That until further order, the respondent, … also known as [Ms PRIM] born … 1973 be restrained from leaving the Commonwealth of Australia and that the Australian Federal Police give effect to this order.
(3) That until further order, the names of the respondent, … also known as [Ms PRIM] born … 1973 and the children [K] (female) born … 2001 and [B] (male) born … 2006 be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
(4) That unless the Court otherwise orders the names of the children and the respondent on the Watch List shall lapse 12 months from the date the names were placed on the Watch List.
(5) That until further order, the respondent, … also known as [Ms PRIM] born … 1973 surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said children [K] (female) born … 2001 and [B] (male) born … 2006.
(6) That a warrant issue authorising and directing the Marshall of the Family Court of Australia and all officers of the Australian Federal Police and all officers of the Police Forces in the Commonwealth of Australia to take possession of the children [K] (female) born … 2001 and [B] (male) born … 2006 and deliver such children to officers of the New South Wales Department of Family and Community Services to secure the welfare of the children pending the determination of this application, and that for the purpose of the exercise of the foregoing powers to stop and search any vehicle vessel or aircraft and to enter and search any premises or place where the said children may be or where there is any reasonable cause to believe such children may be found.
(7) That the applicant and respondent make such arrangements as are necessary to ensure the return of the children [K] (female) born … 2001 and [B] (male) born … 2006 to the United States, of America (“United States”) forthwith in the company of such person and upon such conditions as this Court deems necessary pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
(8) That the respondent, … also known as [Ms PRIM] born … 1973 be served with sealed copies of the application and the annexures and of these orders no later than __________________ and that the application be returnable before this court on ____________________________.
(9) That sealed copies of this Application and these orders be served upon the Commissioner, Australian Federal Police.
(10) That the respondent, … also known as [Ms PRIM] born … 1973 pays for the costs for the return of the children including airfares and any other necessary travel expenses to the United States and in the event that the respondent returns to the United States in the company of the said children the respondent pays the costs of her own airfare.
(11) That the parties are at liberty to apply herein on twenty-four hours notice.
(12) Such further or other orders and relief on direction as the Court deems necessary.
DOCUMENTS RELIED UPON
The applicant relies on the following:
·Form 2A Family Law (Child Abduction Convention) Regulations sworn and filed 2 December 2014; and
·Affidavit of Nili Veronica Hali filed 12 January 2015.
The respondent mother relies on the following:
·Answer and Cross Application filed 23 December 2014;
·Affidavit of the mother filed 23 December 2014;
·Affidavit of Mr Prim filed 24 December 2014; and
·Affidavit of Ms C filed 23 December 2014.
SHORT HISTORY
K was born in Sydney, Australia in 2001 and B was born in California, USA in 2006. Their parents are Ms Prim (“the mother”), the respondent and Mr A (“the father”). The father was born in San Francisco and has lived there all his life. The mother was born in London and moved to San Francisco when she was 24 years of age. Both B and K hold passports from Australia and the USA.
On 25 June 2014 the children and mother left the USA for Australia, with the agreement of the father. Their tickets were booked for them to return to the USA on 1 September 2014. The children did not return on 1 September 2014 but were retained in Australia against the wishes of the father.
THE HEARING
The hearing was conducted on 15 January 2015. The applicant and respondent were each represented by solicitors and counsel. The children were represented by the Independent Children’s Lawyer (“ICL”). Although not a party to the proceedings, the father attended the hearing and by leave granted unopposed, his solicitor sat at the bar table. The hearing was conducted on the papers and after oral submissions, judgment was reserved.
CHRONOLOGY
The father was born in San Francisco in 1970 and is currently 44 years of age.
The mother was born in London in 1973 and is currently 41 years of age.
The mother was diagnosed with Huntington’s Disease in 1994.
In 1997 the mother moved to the USA.
In late 2000 to early 2001 the parents met in San Francisco and commenced a relationship. The parents lived in Sydney from late 2001 until mid-2002 and thereafter resided in Town I, Marin County, California (“Town I”).
K was born in Sydney in 2001. She is currently 13 years of age.
The parents were married in California in 2002.
B was born in 2006 in San Francisco. He is currently eight and a half years of age.
In mid-2012 the parents decided that the family would move to Sydney.
In anticipation of their planned move, in September 2012 the parents sold their house in Town I. They subsequently rented a house in Town D, in Marin County.
In September 2013 the father obtained employment in California as an Executive Director of Organisation E.
The mother and children spent three to four weeks in Australia in November 2013. During that time the mother inspected schools and arranged enrolments for the children in Australia.
The father said that on 1 February 2014 he told the mother that he was not prepared to move to Australia but was willing to discuss the idea.
On 28 May 2014 the parents signed an agreement in the following terms:
a.The children would holiday in Australia during the summer of 2014 from 20 June 2014 to 31 August 2014;
b.The children would return to Town I to attend school;
c.The mother would travel back and forth to the USA and Australia as she saw fit; and
d.The mother and the father would ‘re-enter discussions of the move to Australia’ in November/December 2014.
The mother said that in early June 2014, she and the father together, booked the children’s flights tickets to Australia but with open returns. The father said that the tickets for the children had return flights booked.
On 25 June 2014 the children and mother left the USA for Australia. The father says that he understood that the children would return on 1 September 2014.
On 22 August 2014 the father arrived in Australia. He was booked on a return flight on 1 September 2014, with the children. He says that shortly after his arrival the mother informed him that she wanted to stay in Australia.
The parents separated in August 2014.
The father commenced proceedings in the Federal Circuit Court of Australia on 22 August 2014 seeking parenting orders including that he have sole parental responsibility for the children, that they live with him and that the mother deliver the children to him with their USA and Australian passports and that the father be permitted to remove the children from Australia.
On 28-29 August and 1 September 2014 the parents attended mediation at the O Mediators. During the sessions the parents reached a tentative/conditional agreement which included the children living in Sydney. The agreement had a seven day cooling off period.
It is the father’s evidence that the settlement discussions were promising and he made the difficult decision to return home on 1 September 2014 without the children. He said that he made it clear to the mother that by doing so he was not conceding her view on the issue of where the children should live.
On 3 October 2014 the father, through the Office of District Attorney, County of Marin, California met with a Deputy District Attorney to initiate filing an application under the Hague Convention.
On 6 October 2014 the father commenced proceedings in the Superior Court of California. The father sought a divorce, legal and physical custody of the children and property rights to be determined. On 9 October 2014 the father obtained ex parte orders from that Court in relation to the children.
On 2 December 2014 the Application for Return, commencing these proceedings was filed by the New South Wales Central Authority.
The proceedings first came before the Court on 9 December 2014 when orders were made restraining the mother and children from leaving Australia and appointing an ICL for the children. A hearing was set down for 15 January 2015.
Also on 9 December 2014 the Marin County Superior Court made the following orders:
1. All current orders shall remain in effect pending further order.
Practitioner/father shall have temporary sole legal custody of the minor children and the right and responsibility to make decisions regarding the children’s school, doctors and general welfare.
2. Petitioner/father shall have temporary sole physical custody of the minor children: the children are to live with and be under the supervision of petitioner father.
3. The court finds that the California Court is the home state of the children pursuant to Family Code §3402(g) and §3421(a)(1) and the California Court has jurisdiction over the children because this is their home state.
4. The court rejected respondent’s contention that, pursuant to Fam. Code §3426, it decline to exercise its jurisdiction and stayed the matter pending resolution of proceedings under the Hague Convention in Australia.
5. The court stays execution of these orders pending the outcome of the Hague Convention proceedings in Australia. Once the jurisdictional issues are resolved and if the children are returned, the parents should then return to Child Custody Recommending Counselling.
In mid-December 2014 the mother and children moved to a house at Suburb F, Sydney, purchased by the maternal grandfather. The home has four bedrooms and is located close to the school the children attend.
APPROACH
The Abduction Regulations introduce into Australian law the obligations taken up by Australia as a signatory to the Hague Convention.
Generally speaking the Abduction Regulations require the return of children who were wrongfully retained or wrongfully removed from a convention country.
As to when the removal or retention of a child is wrongful, subregulation 16 (1A) provides:
(1A) For subregulation (1), a child‘s removal to, or retention in, Australia is wrongfulif:
(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.
The effect of regulation 16 of the Abduction Regulations as it applies to the case argued by the parties in these proceedings is that:
(a) The Court must order the return of the children to California if the applicant satisfies the Court that:
(i)They were habitually resident there immediately before 1 September 2014;
(ii)At that date their father had rights of custody and would have been exercising those rights but for the removal; and
(iii)The retention of the children in Australia on 1 September 2014 was in breach of the father’s rights of custody.
(b) If the applicant cannot bring the circumstances within those requirements, the application will be dismissed.
(c) If the applicant can bring the circumstances within those requirements the Court may consider not ordering the return of the children to California if and only if the mother establishes that:
(i)The father consented or acquiesced in the retention; or
(ii)There is a graverisk that returning the children to California would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
I turn to elements of the case. First, the applicant must bring the circumstances within the scope of the Abduction Regulations.
WRONGFUL REMOVAL
As to the elements of wrongful removal: the children are under 16 years of age. The first issue in the case is whether they were habitually resident in the USA immediately before their retention on 1 September 2014.
In LK v Director-General, Department of Community Services (2009) 237 CLR 582 the High Court addressed the question of habitual residence in the context of an appeal from a decision in relation to the Abduction Regulations. It said:
Habitual residence
21. The expression “habitual residence”, and its cognate forms, have long been used in international conventions, particularly conventions associated with the work of the Hague Conference on Private International Law. Although the concept of habitual residence was used in a Hague Convention (on civil procedure) as long ago as 1896, and has since been frequently used in other Hague Conventions, none of those instruments has sought to define the term. Rather, as one author has put it, the expression has “repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts”. Thus the Explanatory Report commenting on the Abduction Convention said that “the notion of habitual residence [is] a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile” (emphasis added).
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.
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.
24. Use of the term “habitual residence” to identify the required connection between a person and a particular municipal system of law amounts to a rejection of other possible connecting factors such as domicile or nationality. In particular, it may be accepted that “habitual residence” has been used in the Abduction Convention (as it has been used in other instruments) “[t]o avoid the distasteful problems of the English concept [of domicile] and the uncertainties of meaning and proof of subjective intent”. It was said in the nineteenth century that the notion that lies at the root of the English concept of domicile is that of permanent home. But it was soon recognised that domicile, in English law, is “an idea of law”. Thus, in considering acquisition of a domicile of choice, questions of intention loomed large, and the relevant intention had to have a particular temporal quality (an intention to reside permanently or at least indefinitely). Use of “habitual residence” in the Abduction Convention rather than domicile as the relevant connecting factor entails discarding notions like the revival of domicile of origin and the dependent domicile of a married woman which marked the English law of domicile. More importantly for present purposes, use of “habitual residence” in preference to domicile entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired.
25. It may well be said of the term “habitual residence”, as it was of the expression “domicile”, that “if you do not understand your permanent home ... no illustration drawn from foreign writers or foreign languages will very much help you to it”. Yet it may be accepted that “[h]abitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities”. Accordingly, 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. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence. So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
26. In deciding where a child was habitually resident at an identified time it is, no doubt, important to consider the context in which the inquiry is required. Here, the chief contextual consideration is that, in accordance with the Abduction Convention, the purpose of the Regulations is to facilitate resolution of disputes between parents relating to a child’s care, welfare and development in one forum – the child’s country of habitual residence – rather than any other forum. While that may tend in favour of finding that a child does have a place of habitual residence, neither the Regulations nor the Abduction Convention provides for a particular vindication or enforcement of rights in relation to the child. Vindication and enforcement of rights is to be a matter for the forum to which the Regulations and the Abduction Convention point: that of the child’s habitual 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. The facts of this case provide one example of such circumstances. The mother left Israel on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return. In those circumstances, it is not possible to say that the mother then had a settled intention which was sufficiently described either as being an intention to reside permanently in Israel or an intention to reside permanently in Australia. Neither description would acknowledge the significance attached to the possibility of reconciliation.
30. Both before and after she left Israel she set about establishing important connections with Australia consistent with her and her children establishing the centre of their lives here rather than in Israel. In particular, before she left Israel, she registered the children as Australian citizens and procured enrolment of the two older children at an Australian private school. In Australia she soon sought and obtained Centrelink benefits, the two older children started school and the next oldest was enrolled at preschool, the older children joined a soccer club and took music lessons. Later, with the assistance of her parents and the local Jewish community, she rented and furnished a home for her to live with the children.
31. All of these steps (except the last) were taken before the father asked, in July 2006, for the children to be returned to Israel. All of the steps identified are consistent with, indeed support, the view that by registering the children as Australian citizens and enrolling the older ones in school before she left Israel, the mother was then set upon a course from which she did not thereafter deviate: to move to Australia unless the father decided (contrary to the then state of affairs between them) to live with her and the children.
32. Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left, were to that extent ambiguous. Even accepting that to be so, because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.
33. Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
34. Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35. It follows from each of the three considerations just mentioned that 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.
A division of authority?
International treaties should be interpreted uniformly by contracting states. Although the questions in this matter turn immediately upon the proper construction and application of the Regulations, the Regulations provide that, unless the contrary intention appears, an expression used in the Regulations and in the Abduction Convention has the same meaning in the Regulations as in the Abduction Convention. It follows that, unless it is shown that the term is used in the statute law of other contracting states in a sense different from the way in which it is used in the Abduction Convention, care is to be exercised to avoid giving the term a meaning in Australia that differs from the way it is construed in the courts of other contracting states. But it is no less important to recognise that, because the term is not defined in the Abduction Convention, and the absence of definition reflects the stated intention that it should be treated “as a question of pure fact”, conclusions reached in the courts of other jurisdictions are not lightly to be treated as establishing principles of law which govern the term’s meaning and application. Rather, they are to be read and understood as resolving the particular controversy tendered for decision.
37. The Full Court concluded in the present matter that its own previous decisions, and decisions in the United Kingdom, had held that “a settled purpose is a necessary and integral part of a finding of habitual residence”. What is meant by “settled purpose”?
38. Use of the expression “settled purpose” in this context is often traced to the statement in the reasons of Lord Scarman in R v Barnet London Borough Council; Ex parte Shah:
“I agree with Lord Denning MR that in their natural and ordinary meaning the words [‘ordinarily resident’] mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration’. The significance of the adverb ‘habitually’ is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght’s case, namely residence adopted voluntarily and for settled purposes.”
Two points may be made at once. First, both Shah’s Case and the case to which Lord Scarman referred (Lysaght’s Case) were decided in contexts very different from the present. Shah’s Case concerned the making of educational grants to students “ordinarily resident” in the United Kingdom. Lysaght’s Case was a decision about the liability to pay income tax by a person “ordinarily resident” in the United Kingdom. Secondly, the reference to “settled purposes” in neither case was amplified. But in Shah’s Case, in the course of considering other cases in which the expression ordinary residence had been examined, Lord Scarman pointed out that it would be erroneous to hold that demonstration of an intention to live in a place permanently or indefinitely was necessary to show ordinary residence. Such a conclusion would be erroneous, Lord Scarman heldhttp:// - , because it would import into the law, from the old law of domicile, those questions of subjective intention which the use of the concept of ordinary residence was intended to exorcise.
39. It will be observed that reference was made in Shah’s Case to residence “adopted voluntarily and for settled purposes” (emphasis added). Subsequent decisions, both in Australia and in the United Kingdom, have often referred to “settled purpose” or “settled intention”. So, in In re J (A Minor) (Abduction), Lord Brandon of Oakbrook, having first noted that the term “habitually resident” is nowhere defined, is not to be treated as a term of art, and presents “a question of fact to be decided by reference to all the circumstances of any particular case” (emphasis added), expressed the opinion ”that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B”. Leaving a country with a “settled intention not to return to it but to take up long-term residence” elsewhere was identified as sufficient to terminate habitual residence in the first country, whereas “[a]n appreciable period of time and a settled intention will be necessary to enable” a person to become habitually resident in the second country.
40. But for the reasons given by Lord Scarman in Shah’s Case, it would be wrong to treat the references to settled purposes (or settled purpose or intention) as importing the old law of domicile by directing an inquiry in cases arising in connection with the Abduction Convention into whether the person whose place of residence is in issue is shown to intend to live there permanently or at least indefinitely. Rather, as Waite J rightly said in Re B (Minors) (Abduction) (No 2), the effect of decisions in the United Kingdom about the Abduction Convention, particularly the decision of the House of Lords in re J, is that:
“Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.
All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.” (emphasis added)
41. As was pointed out by the majority of the Full Court of the Family Court in DW v Director-General, Department of Child Safety, the conclusions expressed by Waite J may be seen as at odds with the view of Rattee J, sitting at first instance in the Family Division of the High Court of Justice in A v A (Child Abduction). In A v A, Rattee J said that the reference in Lord Brandon’s speech in re J to settled intention should be understood as “a settled intention to take up long-term residence in the country concerned”. It is to be noted, however, that the conclusions expressed by Waite J about the state of the law in the United Kingdom were later adopted by the Full Court of the Family Court in Cooper v Casey and Panayotides v Panayotides.
42. To the extent to which the Full Court in the present matter is to be understood as preferring the view of Rattee J to that of Waite J, it would constitute the adoption of a view that does not appear to command general acceptance in either the English courts or the earlier decisions of the Full Court of the Family Court mentioned above. And, as earlier explained in these reasons, if references to settled intention were to be understood as requiring inquiries about intention like those that are necessary to the application of the law of domicile, such an understanding would be sharply at odds with the use of the expression “habitually resident” in the Regulations and the Abduction Convention in preference to domicile.
43. In its reasons in the present matter, the Full Court examined whether its earlier decisions required it to apply principles different from those adopted in New Zealand. Particular reference was made to SK v KP and the reasons of McGrath J and Glazebrook J.
44. It is, however, not necessary to examine the decision in SK in detail. Rather, it is sufficient to observe that in Punter v Secretary for Justice, the effect of the decision in SK was described in the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O’Regan JJ) as holding that the inquiry into habitual residence is “a broad factual inquiry”. The plurality went on to say in Punter:
“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”.
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. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified by Lord Brandon in re J, to decide the question of habitual residence “by reference to all the circumstances of any particular case” (emphasis added).
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
DISCUSSION
The applicant contends that at all relevant times, including 1 September 2014, the habitual residence of the children was the USA because:
(a)They took on the habitual residence of the parents and at all relevant times they were habitually resident in the USA.
(b)K was born in Australia but for all but a few months of her life, both children lived at all times in the USA.
(c)The mother was not able to unilaterally change the habitual residence of the children.
It is the mother’s case that she and the father agreed to the family moving to Australia and the habitual residence of the children ceased to be the United States of America at some time prior to 1 September 2014.
The critical issue in these proceedings is not whether the children’s place of habitual residence changed to Australia but whether they ceased to be habitually resident in the USA.
There is no doubt that at all times prior to June 2014, the children were habitually resident in the USA. Apart from a few months in the case of K, they lived in the USA all their lives. It is the applicant’s case that there was no change to that situation, up to and including 1 September 2014. The mother asserts that their habitual residence was changed prior to that date.
RIGHTS OF CUSTODY
Regulation 4 provides:
Meaning of rights of custody
(1) For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3) For the purposes of this regulation, rights of custody may arise:
(a)by operation of law; or
(b)by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
It is an agreed fact that the father had rights of custody at all relevant times.
Those rights of custody arise under section 3010(a) of the California Family Code whereby the mother of an unemancipated minor child and the father, if presumed to be the father under section 7611, are equally entitled to the custody of the child.
The general position in relation to the habitual residence of children of parents who lived together is that the children take their habitual residence from that of their parents and neither parent can thereafter, unilaterally change the habitual residence of the children. The general position applies here.
It falls to the applicant to establish that the children were habitually resident in the USA immediately before their retention in Australia on 1 September 2014. As I understand the cases run by the parties, it is agreed that the children were habitually resident in the USA before June 2014. The mother contends and the applicant disputes, that their habitual residence ceased to be the USA at some time before 1 September 2014. The mother’s argument relies on the conduct of the parties and on the father’s consent to the children moving to Australia. For reasons that are set out in more detail below, in my view the mother cannot make that case.
It is common ground that the parents agreed in mid-2012 to the family moving from the USA to Australia. They sold their house in September 2012 in anticipation of the move. They rented a house in Town D for nine months.
The father says that three months later the mother told him that she had changed her mind and no longer wanted to move to Australia. In June 2013 the parents extended the Town D lease to June 2014.
In September 2013 the father landed his dream job as the Executive Director of Organisation E. He said the job ‘caused [him] to want to root here in California’.
The father said that on 1 February 2014 the mother told him that she again wished to live in Australia[1]. The father said he was not prepared to move but was willing to discuss the idea. The father deposed that “I no longer wanted to move to Australia. My response was that the children and I are happy living in Marin, and that we need to go to therapy because we are polarized.”[2]
[1] Affidavit of the father, annexed to the affidavit of Nili Veronica Hali filed 12 January 2015 – page 311 of the tender bundle.
[2] Affidavit of the father, annexed to the affidavit of Nili Veronica Hali filed 12 January 2015- page 311 of the tender bundle.
The parents’ friend, Ms C, confirms[3] the evidence of the father’s attitude to some extent. She deposes among other things:
...
In the last 4 months before [the mother] and the children left however, her[4] appeared less enthusiastic about the idea. He seemed to be in two minds. I do not know why.
[3] Affidavit of Ms C filed 8 October 2014 – page 265 to 268 of the tender bundle.
[4] I think this is a typographical error and should be “he”.
On 14 May 2014 the mother emailed someone at G School, the school in Marin County attended by the children. The email[5] referred to B and included:
I wanted to let you know that I have been diagnosed with a brain disease and probably only have six years of good life left so this is a huge energy we are trying to hold. I wanted to let you know that it is this diagnosis that is the reason for a move back to Australia. So that I can have some time with my family and friends and go slow walking in the beach. Lowering cortisol which is suggested I wanted you to know this. I am going to Australia in June and will stay there coming back and forward a few times we are still working out the plan.
[5] Affidavit of the father, annexed to the affidavit of Nili Veronica Hali filed 12 January 2015 –page 326 of the tender bundle.
That email does not suggest that the parents had finalised a decision that the children would depart California indefinitely.
The parents commenced counselling regarding the move to Australia in early 2014 with Mr H and Ms J who were therapists with L Mediators. As outlined above at paragraph 22, on 28 May 2014 the parents signed an agreement in the following terms:
a.The children would holiday in Australia during the summer of 2014 from 20 June 2014 to 31 August 2014;
b.The children would return to Town I to attend school;
c.The mother would travel back and forth to the USA and Australia as she saw fit; and
d.The mother and the father would ‘re-enter discussions of the move to Australia’ in November/December 2014.
On 4 June 2014 the parents received confirmation from M School in Suburb N, Sydney, that K had a position at the school for the commencement of Term 3, 2014. This was in accordance with an application made by both parents that she attend that school. The father deposed that on 5 June 2014 he forwarded to the mother, for her records, a copy of an email that she had sent to him[6] in the following terms:
Hi love
I am just letting you know I am putting a deposit at [M] school to secure [K’s] placement.
As well as moving [B] to the top of the waiting list.
There will be no other enrolment fee until a space becomes available for [B].
Hopefully later on the year after October.
If a place does become available for him later in the year we would also need to pay the same deposit for him (WHICH WOULD MEAN POSSIBLY AN ADDITIONAL APPROX. AU$1850 AT THAT TIME).
AFTER THE ABOVE, WE AGREE TO NO MORE PAYMENTS TOWARDS THEIR SCHOOLING IN 2014, TO BE REVISITED AGAIN AROUND NOVEMBER/DECEMBER 2014.
[6] Affidavit of the father, annexed to the affidavit of Nili Veronic Hali filed 12 January 2015 - page 325 of the tender bundle
That email is consistent with the father’s case that in line with the agreement signed on 28 May 2014, the parties would re-enter discussions of the parties move to Australia in November/December 2014. It is inconsistent with the mother’s case in that if the mother knew the children would be moving to Australia earlier than November/December 2014, it is likely that the children would need to commence school in the Australian Term 4 and further schooling payments would be required for this to occur.
In early June 2014 the parents bought tickets for the children to Australia, departing on 25 June 2014 and returning to the USA on 1 September 2014.
On 25 June 2014 the children and mother left the USA for Australia.
On 7 August 2014 the mother sent the father an email confirming that the maternal grandfather had offered to purchase the parents a house in Sydney. The father replied to the effect that he was not ready to discuss moving to Australia, he said “I am making myself very clear that we are not even at the time to have the next round of discussion around making this move… I am spelling this out to be very clear with you, [the mother’s given name]”. That email is consistent with the father’s evidence and inconsistent with that of the mother.
The mother sent the father an email on 9 August 2014 expressing her desire to stay in Australia. She wrote:
hi my darling
Late night at …
We have fun family packed adventure tomorrow at luna park for [K] i will send you some pictures. We are looking forward to having you here
in terms of a move here
i wanted to say that being here has given me some insight into my health and how it has been there in the states. the past year or so my nervous system has been very sensitive and has led to high cortisol levels which i am doing research on now shows up as not being able to sleep not having a lot of energy and not wanting to go outside much. I will send you some research papers on this that I have been reading very interesting
I have found over the last year or so that my stress levels there in the states is super high ... it is environmental and I think also it is the stress that comes when I am facing a terrifying illness and I am not in my support system...
i know I spoke to you about this realisation before we left that my high cortisol levels are also about not being with my family ..
I know we spoke about Hawaii as an option ... we said it was either Hawaii or Australia for my cortisol levels to be lowered.
However, i know that even though Hawaii has lower environmental stress it does not have the emotional one ... meaning being supporting in a network of love and family support. i know you said that if you had to choose between hawaii and australia you would choose here because of my family and the support they offer
i am writing this to you my love just to remind you that i know we have spoken about it many times but that I cannot return there to the the states it simply is not good for my health. that is why I sold my car ... i cannot do it anymore. I love you
i will sent you the paper on cortisol levels as it is very interesting.
love fem oz from [B] and [K] as well...your wife [an abbreviation of the mother’s given name]
The father responded to the effect that his work was in the USA. He wrote:
My situation is that I have stepped into my greatest work… This is what I (we) have been working for over the last 15 years. This is my moment – it’s happening. And it’s happening here, in my birthplace. This is my dream work and I am enjoying getting paid WELL to do the work that I LOVE. This is HUGE for me… WILL YOU PLEASE ACKNOWLEDGE WHAT I HAVE WRITTEN HERE… so I can feel like you HEAR me and SEE me in all of this.
On 22 August 2014 the father arrived in Australia. He said that he arrived to collect the children and accompany them to the USA pursuant to the agreement. Shortly after his arrival the mother informed the father that she wanted to stay in Australia. She said that the conditions he set for his own move to Australia including that the mother’s cortisol levels had improved and that the maternal grandfather purchase a property for the parents, had been met. The mother deposed that the father said to her “You signed the document that you would come back”. That evidence does not suggest that the father resiled from the 28 May 2014 agreement or had agreed to the family moving to Australia.
The father commenced proceedings in the Federal Circuit Court of Australia on 22 August 2014 seeking parenting orders.
On 28-29 August and 1 September 2014 the parents attended mediation at O Mediators. It is the father’s evidence that he hoped that the parents would reach agreement and that the application would not be needed. In the same vein, the fact that the father engaged in mediation cannot be seen as him conceding the mother’s position or acquiescing to the retention of the children. Parents are always encouraged to resolve their disputes without resort to litigation and no adverse inference should be drawn.
As is referred to above, the father said that the settlement discussions were promising and he therefore made the difficult decision to return home on 1 September 2014 without the children. He said that he made it clear to the mother that by doing so, he was not conceding her view on the issue of where the children should live.
On 1 September 2014 the father returned to the USA.
Conclusion on habitual residence
At least from February 2014, the mother wanted to leave California and move to Australia. She behaved in a way that was consistent with that intention. However, the mother cannot change the habitual residence of the children unilaterally. By the agreement dated 28 May 2014 and by her email to the father in early June 2014, the mother acknowledged in writing that a decision about the children moving to Australia would await further discussions between the parents in November/December 2014.
I am satisfied that the applicant has made out a case of habitual residence at the time of removal.
Was the father exercising his rights of custody
It is an agreed fact that the father was exercising his rights of custody immediately before the retention of the children on 1 September 2014.
Was the retention on 1 September 2014 in breach of the father’s rights of custody
It follows from the above that the retention of the children by the mother on 1 September 2014 was in breach of the father’s rights of custody.
The father had the right to be consulted and heard about an international relocation of the children to a place that would significantly restrict his capacity to spend time with them.
I find that K and B were wrongfully retained in Australia from the USA on 1 September 2014. I am required to order their return to the USA unless the mother can establish a basis for enlivening discretion to refuse such a return.
In the event that her case in relation to habitual residence is not successful, the mother seeks to establish two of the r 16(3) defences – that the father consented to the retention and that there is a grave risk that a return to the USA could cause the children to suffer psychological harm and or would place them in an intolerable situation.
CONSENT
Regulation 16(3)(a) provides relevantly:
(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)...; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
…
The mother bears the onus of proof in relation to the necessary elements of consent, if she is to make out that the exception applies to this case.
The question of consent was discussed by the Full Court of this Court in Wenceslas v Director-General, Department of Community Services (2007) FLC 93-321 .[7] At paragraph 262 the Full Court referred to the views of Justice Hale in Re K (abduction: consent) [1997] 2 FLR 212 at 217-8 (“Re K”):
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
[7] See Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445 at 46 and State Central Authority & Topalogu [2007] FamCA 1337 at 44-45.
The Full Court continued (at 264):
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As presently advised … we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
It was held in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171(“Re M”) that consent does not imply that the person concerned is happy or content with the outcome that has been agreed.[8]
[8] See page 188 and 190 of the judgment of Justice Wall in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171.
Acknowledging that each case must be decided on its own facts and that no two cases are the same, it is instructive to look at previous decisions that have dealt with consent. The majority of relevant cases were determined in the English Courts.
In Re K, the father, a citizen of the United States of America and the mother who was British resided in Texas with their daughter. The relationship broke down and the mother returned to England with their daughter who had been habitually resident in Texas prior to her relocation to England. The mother said that she had a long discussion with the father in the backyard about her desire to return to England. She said that she was unhappy and in effect that she wanted breathing space to sort her feelings out. She told the father that there was a 50/50 chance that she would come back to Texas. She said the father agreed to her taking the child with her. The mother purchased return tickets to England and gave up her job. After moving to England, she phoned the father and told him that she would not be returning to Texas. The father denied that the mother had said there was a 50/50 chance she would return and that he said she could keep the child. The father did, however, after the mother made it clear that she did not intend to return, send a box to the mother containing some of her personal documents and letters from her grandmother. The father consulted a lawyer soon after the telephone conversation.
The case turned upon whether the father had consented to, or acquiesced in, the child’s removal to, or retention in, England. The father denied that there was a conversation about not coming back, about the 50/50 chance that she would not do so and about whether the mother could keep the child if she did not return. It was found on the facts that the father consented orally to the mother keeping the child in England. Hale J stated at page 216:
Taking these and all the circumstances of the case into account, including what I have seen and heard of the parties in the witness box, I have reached the firm conclusion that I prefer the mother’s evidence to the father’s and I am satisfied that a conversation such as she describes took place between the mother and the father before she left and brought C to this country…
And further at page 218:
Having allowed the mother and C to come to this country on that basis, can it be said that the mother has failed to establish that the father had consented to C’s removal or retention? Not without some difficulty, I have reached the conclusion that that it is sufficient to amount to consent and that that consent is not taken away by the father subsequently thinking better of it. Having had that consent, the mother was entitled to rely upon it in making up her mind and keeping C in this country.
In Re C (Abduction: Consent) [1996] 1 FLR 414 the father was American and the mother was English. Their children were of dual nationality. They lived in a rented house in Alaska and the mother visited England with the children during holidays. The parents separated in 1994 and in 1995 the mother flew to England with the children and remained, intending to settle permanently in England. The father stated that he had only agreed to the mother coming to England with the children for a holiday and he applied for the return of the children.
The mother said that she had lengthy discussions with the father about her return to England and that he agreed to her doing so. She said that the father stood by her over many months while she made ‘open and elaborate arrangements in pursuance of her plans.’ It is agreed that the parents held a ‘garage sale’ which the mother said was to sell items that would no longer be needed after her departure and to try and raise some funds towards air fares. The father said the sale was merely part of a general clear-out occasioned by their move to a smaller home (which Holman J noted had occurred in 1991). The mother was also the subject of a number of ‘farewell parties’. The mother packed for the move towards the end of 1994, packing both suitcases and a large number of boxes for shipping goods by sea. The father said that there was a general plan that the father would move to Seattle in 1995 and the packing of the boxes, the mother giving up her job and the farewell parties were consistent with the parents moving to Seattle. The father said that he was so busy working for his university finals in May 1995 that he did not realise his wife was planning a permanent move. Justice Holman commented that he found the father’s argument unconvincing, he said at page 421:
I find this unconvincing. He is an alert, highly intelligent man, with a forceful personality. It must have been absolutely obvious to him throughout the whole period that the mother was indeed making preparations to leave Alaska permanently and come to England.
Justice Holman concluded at page 423:
I am quite satisfied to a considerably higher standard than the balance of probabilities, and by the evidence that I regard as clear and cogent, that throughout most of 1994 and right up to the time the mother actually left on 11 January 1005 the father was in agreement (however sadly and reluctantly) with the mother bringing the children here permanently. His motive in agreeing was that he believed, wrongly as it turned out, that the mother would ultimately have second thoughts and return to him. He made it clear to the mother that he was in agreement, and he stood by for many months while she openly made the arrangements to come. I am thus satisfied that he did consent at the time to the removal.
In Re M the child was habitually resident in Greece and lived with the English mother and Greek father. In July 1997 the mother relocated the child to England and in May 1998 the father sought return of the child. The mother argued that the father had consented to the removal. She gave evidence that when she first explained her intention to move to England, the father replied that if she wanted to, she should go. She also said that when the father was recovering from an operation on his stomach he said after the mother queried whether he wanted to move to England with her, that he did not and that she should go to England with the child. The mother acknowledged that at the time the father was weak and still on medication.
The mother gave evidence that although her preparations had been made openly, including packing her and the child’s belongings, resigning from her job, giving notice to the child’s nursery and selling belongings, the father had not, at any stage objected to the child leaving. The father argued that the mother had told him she was taking the child to England for a visit, but he expected the mother and child to return at the end of the holidays. He said there was nothing unusual about the quantity of belongings the mother took to England with her and that he had no knowledge of the mother selling belongings. He conceded later that he was content for the washing machine to be sold in order to raise money for the purchase of the flight tickets. There was also a conflict around the events since the removal, the mother claiming that the father had telephoned regularly to find out how the child was settling down, and made contact visits when he came to England. The father claimed that these visits were attempts to bring the child back.
Justice Wall refused to order the child’s return. It was held at page 189 that the father’s overall attitude, statements he made to two witnesses in the proceedings and his conduct in standing by while preparations were made to leave demonstrated a course of conduct from which consent could be inferred. It was held that it was not necessary to show that the party consenting seemed happy about the prospective removal, as grave reservations about the removal did not vitiate consent to the removal once consent had been established by the evidence. Justice Wall stated that:
If the evidence demonstrates a course of conduct from which consent can plainly be inferred, the fact that the father has not made any positive or unequivocal statement of his agreement with what is proposed by the mother does not, in my judgment following Re C, prevent the court from finding that he has consented to the child’s removal. What matters is that his conduct is overall sufficient to demonstrate consent.
In T v T (Abduction: Consent) [1999] 2 FLR 912 the father was Greek and the mother Zambian. The parents lived in Zambia until their child was nearly six years old when they moved to Greece in 1996. Within a few months of the family’s move to Greece, the mother travelled to England without the child and formed a relationship with another man. She went back to Greece briefly and then returned to England in May 1997 with the child. The father spent time in England from July 1997 to December 1997. The mother claimed that the father had consented to the child moving to England and that the father said he would move to England and start a business. The father claimed that he had consented to the child taking a long holiday in England with the mother, but not to his permanent removal from Greece. He said that the mother did not tell him of her settled intention to move permanently or of her relationship with another man.
The mother relied on the fact that she took a large amount of luggage with her to England, purchased a one way ticket, that the father gave up his flat when he travelled to England, that the father knew the child was attending school in England and that the fact the father bought a car while in England meant he was envisaging a long stay. Justice Charles found that the most the mother could make of these points was that the father was keeping all his options open, including the possibility that he and the mother might reconcile in England.
It was common ground that in August 1997 the mother and father had an argument and the father said he would only give the mother a divorce if she agreed to him taking the child back to Greece with him. Justice Charles noted that it was not asserted on behalf of the mother that this stance of the father changed or that he did or said anything thereafter which amounted to acquiescence or an acceptance that the child should remain living in England.
Justice Charles concluded that on the evidence of the case, the father did not consent to the mother taking the child to England on the basis that he would stay there permanently and further that the mother did not believe that he had given such consent and was fully aware that he had not done so. Charles J also found that by not telling the father of her relationship with another man she deceived him and there was therefore no consent.
In the unreported decision of Justice Ryan in Department of Human Services v Parry [2010] FamCA 689, the mother left England with the child and travelled to Australia in January 2010. Three days before her departure she told the father she and the child would leave England to live in Australia permanently. During 2009 the parents signed documents which would enable the child to migrate to Australia on the basis that the mother’s brother would sponsor the child and her applications for permanent residence. The mother said the father signed a statutory declaration in September 2009 giving permission for the daughter to migrate to Australia. According to the father his consent was conditional upon his being sentenced to a term of imprisonment in relation to fraud charges he was defending. The father said that in December 2009, he spoke with the mother and told her he had not been sentenced to a term of imprisonment, and that he withdrew his agreement that the child could migrate to Australia. The father said the mother understood his position and agreed to tear up the statutory declaration signed in September 2009. According to the mother, the father’s consent was unconditional and she kept him informed of each step she took to obtain permanent residence in Australia. There was no dispute that in January 2010 the father told the mother he did not agree she could take the child from England to Australia and that after this conversation the mother brought forward her departure date and without further notice to the father, departed England with the child. The mother argued that the father had consented to the child’s removal from England, which consent he could not subsequently withdraw.
Justice Ryan referred to the case of Police Commissioner of South Australia v Temple (No 1) (1993) FLC 92-365 where Murray J adopted Lord Browne-Wilkinson’s comments in Re H (Abduction: Acquiescence) [1998] AC 72 at 88:
Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires the wronged parent to be held to have acquiesced.
Justice Ryan held that the father had not consented to the child’s removal. At paragraph 106 Ryan J said ‘Thus, while the father had previously agreed that the child could migrate to Australia; there was no agreement about when this would occur. From late December 2009, the mother knew his consent had been withdrawn. Again, once the mother set a date the father repeated that he did not agree the child could be removed.’
In Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445[9] the parents had two children, born in England in 2011 and 2013. After the birth of the second child, the marriage became increasingly strained and the mother informed the father in November 2013 that she wanted to move to Australia. The mother handed the father a document titled “separation from [the father]” which she had written. The father returned the “separation” document to the mother with handwritten terms on the back which requested among other things, equal rights “50/50” and “you will not leave”. The mother said in discussions about her and the children going to Australia, that the father agreed they could go and the only unresolved issue was the terms upon which he would agree to her returning to Australia. The mother said the father informed her “You can leave when I say so”, “You will agree to my terms” and “You must remain in the house until I say you can go home”. A short time later the father handed the mother a typed letter which included the following “As soon as I can get my rights on paper and signed by you and lodged in Australia you can go home. If this takes 3 weeks or 2 months you will except [sic] this…”. The mother submitted that the father was giving clear, unambiguous consent to the mother and children returning to Australia and the only thing that was ambiguous was at what point in time the father would permit the children to leave. The father submitted that she was not free to return to Australia until his rights and the care of the children were resolved. He submitted that the mother was well aware she had left without his consent as reflected in a text message sent after her move which read “im [sic] sorry. I had no option but to head home.”
[9] Note: this case was appealed and the trial judge was upheld on his findings based on the ‘grave risk’ defence, The trial judge’s finding in relation to consent was not appealed.
Justice Johnston did not agree with the mother’s submission and found that the mother failed to establish that the father consented unequivocally to the removal of the children from the UK. He stated at 52:
In my view, what has occurred is that the parents were having negotiations with a view to the mother being able to remove the children to Australia at some point in the future. In my view, however, the father made it quite clear that he would not consent to such a course until the parenting arrangements in relation to the children had been resolved by the parents.
And at 53:
In my view his hand-written document… made this very clear. His final words, as indicated above, were “you will not leave”. In my view this was a clear reference to the suggestion in the document that a proposal by the mother was for her and the children to return to Australia…
DISCUSSION
It is necessary to examine the facts in the proceedings before me for evidence of express or tacit agreement by the father to the indefinite relocation of the children to Australia. Many of the facts discussed above in relation to a finding of habitual residence are also relevant here.
It is common ground that the parents agreed in mid-2012 to the family moving from the USA to Australia.
On 24 July 2012 the father sent an email to several of his friends recommending the nanny that the family employed. In that email he said “See you back at school in September, though at the moment we are leaning towards a move DOWN UNDER in late September… more later…”.
The mother’s father gave evidence in relation to the father to the following effect:
·For several months prior to the mother and children arriving in Australia, the mother called her father on an almost daily basis. During many of those telephone conversations the mother sounded distraught and very unhappy. She complained about the way the father was treating her. She also said “he is short with the children. I don’t know what’s wrong with him. He has changed dramatically. He’s sleeping in [K’s] room.”
·About one month prior to her arrival in Australia the mother said to her father “[An abbreviation of the father’s name] made me sign against my will a letter stating that I would allow him to arrive in Sydney at the end of August with the intention of returning to the USA with the kids. I was not happy to sign but he was aggressive and I felt he (sic) had no option but to sign it.” As is mentioned earlier in these reasons, the mother does not make those assertions in her evidence. On her evidence she signed the agreement on 28 May 2014 when she was upset because she thought the father was having an affair.
Oddly, in the context of a case whereby the mother seeks to portray the father as physically violent and otherwise contributing to grave risk of harm to the children, the mother’s father deposed:
27. During another morning conversation in mid 2014 she (the mother) said: ‘[The father] has asked me to sign a legal letter saying that I will not pursue (sic) in his real estate in Hawaii’ I said: ‘Are you sure? Can you send me a copy? Do you have a copy?’ She said: ‘No’. It was then that I became very concerned that [the father] was making plans to divorce [the mother].
The question arises, if the mother’s father thought that the father was controlling and threatening and the source of distress to his daughter, why was the thought of him seeking a divorce concerning?
Ms C is a friend of the parties. She attended their wedding and for 18 months prior to June 2014 she was their neighbour. She has heard the father yelling. Ms C observed the father to become nasty with the children over the first 12 months she lived next door to the Town D property. She heard him yelling things like: “Come here” and “Stop that”. I gather she thought that was out of character because she deposed that she was surprised to hear the father yelling. When she heard that the father was sleeping in K’s room, Ms C thought it was odd and inappropriate but did not consider that anything untoward was happening in a sexual sense. In the last four months of her time as the parents’ neighbour, Ms C reports that the mother came into her home on many occasions, shaken, distressed and sometimes exasperated, complaining about the father yelling and bullying her.
The mother’s case about the father’s parenting capacity is not entirely clear. For example, on her case, until August 2014 she planned that for all or at least part of the year, the father would be living with her and the children in Sydney. The mother deposes[28] that she expects that the father will be more present in the children’s lives as her parenting role decreases. Why would she have that expectation if the father is violent, controlling or neglectful? The mother and the father have put into evidence, what appear to be thoughtful and loving communications between the parents, including communications as recent as August 2014. The mother put into evidence a loving Mothers’ Day note[29] from the father to her.
[28] Paragraph 15 of the mother’s affidavit sworn 22 December 2014 – page 90 of the tender bundle.
[29] Dated 11th May 2014 – page 160 of the tender bundle.
The mother must agree that the children can be safe in California. Why else would she have given evidence about the children (presumably without her) returning there at Christmas?
Importantly, K wants to return to California. She is at an age where she is capable of self-protection. Knowing her father and knowing that a return would likely mean a separation from her mother, she gave those instructions to her lawyer. There is no suggestion that the children should be separated. Because of his age, the ICL did not invite B to express a wish in relation to return but it may be that, although at an earlier time he wanted to return to live in California, the current indication is that he wants to remain in Sydney. Again, in each case, it would be expected that in expressing their wishes, the children have not focussed on the limited purpose of these proceedings and have addressed their minds to the longer term issue. In any event there is no indication that they are afraid of their father or that they consider that he is incapable of caring for them.
In terms of the observations in DP v Commonwealth Central Authority, here there is little more than bare assertions of the mother’s concerns for the children.
This and other courts have considered the problem of resolving conflicting evidence in matters which must be dealt with on the basis of affidavit evidence alone and in summary proceedings.
In Regino and Regino (1995) FLC 92-587 at 81,814 Lindenmayer J said:
The resolution of the crucial factual issue in this case, which I have earlier identified, essentially involves a determination by me of the relative credibility of the parties’ conflicting accounts of the events immediately preceding the wife’s departure from the United States with M on 25 November, 1993, a particularly of their differing accounts of what the wife then informed the husband about her intentions as regards her future residence.
Before attempting that resolution, it is appropriate to acknowledge that it is particularly difficult for any court to resolve contested issues of fact on the basis of affidavit evidence only where the court does not have the opportunity, which the taking of viva voce evidence provides, of seeing and hearing the witnesses give their evidence and thus being able to assess their credibility in the light of their demeanour and general consistency, particularly when subjected to a searching cross-examination in the forensic context. Nevertheless, in a case such as this, where, by the very nature of the proceedings, one of the parties resides overseas, and it is therefore impracticable to secure his or her attendance before the court to give oral testimony, the court must necessarily undertake that difficult task and do the best it can to resolve the factual issues upon the material which is before it. In doing so, I believe that the court must be cautious not to unfairly disadvantage the absent party by presumptively giving greater credit to the testimony of the other party who happens to be within the jurisdiction and before the court.
In Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 (“Re F”) at 553 Lady Justice Butler-Sloss dealt with the problem of there being irreconcilable issues exposed in the affidavits in Convention cases. She said:
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
For proceedings under the Abduction Regulations, r 29 makes special provision for the rules of evidence that apply to certain proceedings. For example and relevantly r 29(2) provides:
(2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.
One can understand why that provision is there. It seeks to ameliorate the same mischief at which the Convention itself is partly aimed – the difficulty and unfairness of being required to litigate in a foreign jurisdiction, usually over long distances and often in a foreign language. However, in that way, one of the common law evidentiary safeguards, the scope for excluding unreliable evidence on objection, is not available in relation to the evidence filed in support of an application under the Regulations. Of course there remains the capacity and obligation to weigh evidence.
In my view the evidence does not support the conclusion that the children would be at grave risk of psychological harm or otherwise placed in an intolerable situation, if they were returned to the USA. The evidence does not support that contention even if, as the mother’s case suggests would occur, they were to live with the father in California for the duration of parenting proceedings.
All cases are determined on their own facts but I note that in, In Re F (minor: rights of custody abroad) [1995] 3 All ER 641 the Court of Appeal of England and Wales found inter alia and for the first time on an appellate ruling in England and Wales, that the defense of grave risk was made out. Unlike the case before me, the allegations of violence made by the mother in that case were unchallenged. The father elected to offer no evidence.
Here there is no independent corroboration of the mother’s allegations and they are not allegations of the most serious kind of behavior.
In Harris & Harris (2010) FLC 93-454 being a case in which the trial judge was upheld on her findings based on another defence, the Full Court rejected the first instance finding of grave risk of physical or psychological harm because the risk of harm to the children was not sufficiently identified. Among other findings of violent abuse in those proceedings, there were hospital records that enabled the trial judge to find that the father had on two different occasions, broken the mother’s arm. Further, in that case, the father conceded that he had threatened to kill the mother. There is nothing of that order here.
As to the mother’s fears, there is a deal of evidence which is inconsistent with the mother’s claims. The mother gives evidence of appropriate behavior and communication between the parents. As I have said, it was her case until August 2014 that in the future, the family would live together in Sydney for at least part of the time.
As to practical matters, the mother raises an issue about the father’s capacity to financially support the children. I assume that is more of a long term issue than relating to the period of parenting proceedings in a Californian Court. The Californian Court could be asked to make provision for financial support.
Finally, there is capacity for this Court to establish conditions in respect of return. Those conditions could ensure, at least pending the Californian Court dealing with such interlocutory matters, that on return there were appropriate arrangements for schooling, communication with the mother etc. If needed the question of child support could be addressed. The mother would have an opportunity to be heard in regard to such conditions.
Taken together the evidence does not support a finding that on return to the USA the children will be exposed to a grave risk of psychological harm or place the children in an intolerable situation.
The mother has not established a circumstance that permits this Court to consider refusing to order the return of the children to the USA. It is therefore not necessary to address the factors that might influence whether a discretion to refuse to order that return would be exercised. Were that necessary, albeit not the paramount consideration, the best interests of the children would be relevant. In that regard the wish of a 13 year old girl to return to the USA would be influential.
CONCLUSION
For all of those reasons I am obliged to order the return of the children to the United States of America.
Regulation 15(1)(c) of the Abduction Convention provides, among other things, that in making an order for return of children the Court may attach conditions which it considers to be appropriate to give effect to the Convention.
The parties will be able to restore the matter to the list for the purpose of considering any appropriate conditions.
In De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640 it was held that in the exercise of its discretion regard must be had to the subject matter and purpose of the regulations. Depending upon the evidence in a particular case, it is likely that a Court would seek to ensure that there would be suitable interim arrangements for the children upon their return and the availability of a prompt determination of parenting arrangements.[30]
[30] DP v Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) FLC 93-881.
That may not be an issue here, with proceedings already on foot in California. For these reasons I make the orders identified at the commencement of this judgment.
I note that the applicant has advised[31] that the father is willing to travel to Australia to accompany the children back to the USA.
[31] Final paragraph of the applicant’s case outline – page 302 of the tender bundle.
Given that the children were originally booked on return tickets it may be that there will be no additional cost associated with their return to the USA. In the event that there is such a cost, as sought by the applicant, I will order that it be paid by the mother.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 January 2015
Associate:
Date: 23 January 2015
- AGLC
- Secretary, Department of Family and Community Services & Prim [2015] FamCA 16
- Case
- [2015] FamCA 16
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. Firstly, it had to ascertain whether the children were habitually resident in the United States of America at the time of their retention. Secondly, the court needed to decide if the father was exercising rights of custody in relation to the children. Thirdly, it was necessary to determine whether the children had been wrongfully retained in Australia by the mother. Finally, the court had to consider whether the mother had established any of the exceptions under Article 13(b) of the Hague Convention, specifically whether the return of the children would expose them to a grave risk of physical or psychological harm or place them in an intolerable situation.
In its reasoning, the court found that both parents had rights of custody at all relevant times. Crucially, the court determined that the children were habitually resident in the United States of America and that the father was exercising his rights of custody. The court concluded that the children had been wrongfully retained in Australia by the mother. The mother failed to establish that the father had consented to the children being retained in Australia, nor did she successfully demonstrate that their return would expose them to a grave risk of physical or psychological harm or place them in an intolerable situation, despite her diagnosis of Huntington’s Disease.
Consequently, the court ordered the immediate return of the children to the United States of America, in the company of the father. The court stipulated that any conditions for the return would be considered separately and ordered the respondent mother to bear the costs associated with the children's return, including airfares and other necessary travel expenses.
Orders
Orders of the court
1.
The applicant and respondent shall make such arrangements as are necessary to ensure the return of the children, K (female) born … 2001 and B (male) born … 2006 to the United States of America forthwith, in the company of the father and upon such conditions as this Court deems necessary pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
2.
The respondent, Ms Prim shall pay the costs for the return of the children including airfares and any other necessary travel expenses to the United States of America.
3.
The parties are at liberty to apply herein on 24 hours notice to the Court and each other.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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