FAMILY COURT OF AUSTRALIA
| SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & TREDWAY | [2015] FamCA 17 |
| FAMILY LAW – CHILD ABDUCTION – Hague convention application – Application by the Secretary of the Department of Family and Community Services for the return of a 14 month old child to Bermuda – Dispute over country of habitual residence – Where the child was wrongfully removed from Bermuda by the mother – Where the father had consented to the mother removing the child – Where the mother acted on that consent and it was too late for the father to withdraw his consent for the purposes of the r 16(3)(a)(ii) defence – Where grave risk of physical or psychological harm or an intolerable situation is not established – Weighing various factors including spirit of the Convention, discretionary refusal to return the child ordered – Application for return dismissed. | |
| Bermuda Children Act 1998: ss 5, 6 and 36C Family Law Act 1975 (Cth) Part VII Family Law (Child Abduction Convention) Regulations 1986 (Cth): Reg 13(4)(b), 16(1A), 16(3)(a), 16(3)(b), 29 Hague Convention on the Civil Aspects Of International Child Abduction 1983: Art 3 | |
|
| APPLICANT: | Secretary, Department of Family and Community Services |
| RESPONDENT: | Ms Tredway |
| FILE NUMBER: | SYC | 7294 | of | 2014 |
| DATE DELIVERED: | 23 January 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 12 January 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hartstein |
| SOLICITOR FOR THE APPLICANT: | Legal Services, Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Dr Ingleby |
| SOLICITOR FOR THE RESPONDENT: | Meyer Partners Family Lawyers |
Orders
The Amended Application of the Secretary of the New South Wales Department of Family and Community Services filed 24 December 2014 is dismissed.
Leave is granted to the parties to restore the proceedings to the list on giving seven days’ notice to the Court and each other in relation to any consequential orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Family and Community Services & Tredway 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 7294 of 2014
Secretary, Department of Family and Community Services
Applicant
And
| Ms Tredway |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By way of an amended application filed 24 December 2014, the Secretary of the NSW Department of Family and Community Services (“FACS”) seeks the return to Bermuda of R (“the child”), born in 2013. Ms Tredway is his mother and she seeks that the application be dismissed. She says that the Court has no obligation to order the child’s return to Bermuda. If the Court finds that there is such an obligation, she argues that the Court should refuse to order his return, the discretion to do so being enlivened because the father consented to the removal and/or because there is a grave risk that the child will be exposed to psychological harm or otherwise placed in an intolerable situation if returned to Bermuda.
The proceedings are brought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“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 Bermuda are signatories to the convention.
These proceedings were entirely avoidable. At all relevant times the mother proposed to bring the child to Australia and raise him here. It is conceded that the father gave his general approval to that course. All that was missing was a conversation between the parents, prior to May 2014 as to the arrangements for the father to spend time with the child. In default of a successful conversation, one of the parents could have invoked an informal counselling or settlement mechanism in Bermuda and in default of that, one of them could have commenced parenting proceedings in a timely way to address the issues.
Importantly, while the child is very young, the options for those parenting arrangements are limited but obvious. The same options are available to the courts of Bermuda and Australia. These are in effect, bare forum proceedings and the Court’s role is limited to that issue but it is very frustrating that the convention had to be invoked in these circumstances.
I note that the action required of the Commonwealth Central Authority by an application under the Convention includes seeking an amicable resolution of the differences, in relation to the removal or retention of the child, between the parents – r 13(4)(b). I was not told about any such action by the Central Authority in these proceedings.
DOCUMENTS RELIED UPON
The applicant relies on the following:
6.1.Central Authority’s Application filed 20 November 2014;
6.2.Affidavit of Mr A as to applicable law, annexed to the affidavit of Mr B sworn and filed on 18 December 2014;
6.3.Amended Application filed 24 December 2014; and
6.4.Affidavit of Mr C sworn and filed 9 January 2015.
The respondent mother relies on the following:
7.1.Form No 2A filed 11 November 2013;
7.2.Amended Form 2A Family Law (Child Abduction Convention) Regulations sworn and filed 23 December 2014;
7.3.Affidavit of the Mother sworn and filed 23 December 2014;
7.4.Affidavit of the Mother sworn and filed 12 January 2015;
7.5.Affidavit of Ms D sworn and filed 23 December 2014;
7.6.Affidavit of Ms E sworn 22 December 2014 and filed 23 December 2014;
7.7.Affidavit of Dr F sworn 24 December 2014 and filed 5 January 2015; and
7.8.Affidavit of Ms G sworn 10 January 2015 and filed 12 January 2015.
SHORT HISTORY
The child was born in Bermuda in 2013 and lived there for the first few months of his life. He has Australian and British Overseas Territories citizenship. His parents are Mr C (“the father”) and the respondent, Ms Tredway (“the mother”). The father was born in Bermuda, lived there all his life and is a Bermudian citizen. The mother was born in Australia and lived in Bermuda for the eight years prior to the child’s removal. The mother is an Australian citizen. The parents commenced their relationship in 2008 but have never lived together.
On 21 May 2014 the father instituted proceedings in the Family Court of Bermuda. On 27 May 2014 the Family Court of Bermuda made an order on an ex parte basis, restraining the removal of the child from Bermuda. Later that day and without consent of the Court or the father, the mother removed the child from Bermuda by air. They ultimately travelled to Australia, via London, Boston and Los Angeles.
The father made an application under the Hague Convention in Massachusetts in an effort to secure the child for the purposes of convention proceedings there. However, he made the application that resulted in these proceedings in Bermuda on 30 July 2014. On 20 November 2014 the New South Wales Central Authority filed an application in this Court under the Abduction Regulations for the return of the child to Bermuda.
The proceedings first came before the Court on 26 November 2014 when orders were made ex parte for service and to secure the child within Australia. A hearing date of 8 January 2015 was fixed. Following service of the application and those orders on the mother the proceedings came back before the Court on 9 December 2014 and further directions were made. In consultation with the parties, the hearing date was changed to 12 January 2015.
THE HEARING
The hearing was conducted on 12 January 2015. The applicant and respondent were each represented by solicitors and counsel. The hearing was conducted on the papers and after oral submissions, judgment was reserved.
DETAILED CHRONOLOGY
In a hearing conducted on the papers there is naturally particular focus on the sworn written evidence of the witnesses, assisted where possible by corroborative material. Here, there are problems with the parents’ affidavits. In respect of the chronology of relevant events, it is very hard to follow the parents’ affidavit, particularly the main affidavit of the mother. As her counsel identified during submissions, in parts of her affidavit the sequence of events is not accurately reflected. In addition, she sometimes refers to events by approximate dates and in other instances, in terms of the number of weeks of her pregnancy. In at least one instance her translation from one scale to the other is unhelpful. At paragraph 56 she says she was about six weeks pregnant in April 2013 and at paragraph 59 that she was 14 weeks pregnant in about April 2013.
A problem with the father’s evidence is that it is highly likely but not clear that his last affidavit seeks to respond to the mother’s evidence. Without saying so, he addresses events that are likely to be events about which the mother gave evidence. For example he gives evidence about a meeting involving him, the mother and his girlfriend Ms H. The father does not expressly or by necessary implication challenge the mother’s evidence about a similar meeting but gives evidence about something Ms H said that seems, but need not be, inconsistent with the thrust of the mother’s evidence.
The problems with the parents’ evidence can be resolved in some instances by other evidence and in other instances they can be dealt with by reference to the onus of proof. However, there are some issues that are very difficult to resolve. All of that said, the general facts are agreed.
The father was born in Bermuda in 1977 and is currently 37 years of age.
The mother was born in Australia in 1981 and is currently 33 years of age.
In 2006 the mother went to Bermuda to work as a healthcare worker. She worked under successive three year contracts until she resigned with effect from May 2014.
The parents met in Bermuda in 2006 and commenced their relationship in 2008. They both worked for J Hospital, the father as a medical scientist and the mother as a healthcare worker. The parents never lived together and they each maintained relationships with other people for some or all of the time of their relationship.
It is the mother’s evidence that she fell pregnant to the father on three occasions. On the first two occasions the pregnancy was terminated. It is the mother’s evidence that she decided to continue with the third pregnancy, over the objections of the father. The father disagrees with some of that evidence but importantly, asserts that he supported the mother’s decision to have the child.
It is the mother’s evidence that she decided she would return to Australia, have the baby there and raise the child with the assistance of her family. It is the mother’s evidence that the father agreed with that course. The father disagrees with that proposition although the concession was made on behalf of the applicant that the father gave his general consent to the mother’s plan. The question of the father’s consent is a key issue in the proceedings and I will return to it later.
During the pregnancy the father’s relationship with his long term girlfriend, Ms H, broke up on some occasions but was renewed.
On medical advice the mother was not able to travel to Australia for the birth.
It is the mother’s evidence that she made arrangements with her employer to maximise her leave and other entitlements, including maternity leave, before resigning and moving back to Australia. The mother applied for and was granted three months maternity leave.
On 30 August 2013, the mother booked airfares for her travel to Australia following the birth and to return to Bermuda to see out her employment obligations. She booked to depart Bermuda on 18 December 2013 and to return to Bermuda on 27 February 2014[1].
[1] Exhibit 8 to the mother’s affidavit filed 23 December 2014 - page 494 of the tender bundle.
The child was born in Bermuda in November 2013. He is the only child of the parent’s relationship and is 14 months old.
The father regularly spent time with the baby but only for short periods of time.
On or about 19 December 2013, with the father’s consent, the mother and the child travelled to Australia and spent time with the mother’s family during the mother’s maternity and other leave. Mother and child returned to Bermuda at the end of February 2014.
On 18 March 2014 the mother submitted her resignation to the hospital, with effect from 10 June 2014[2].
[2] There is reference in the mother’s evidence and in the letter in reply from J Hospital which is annexure 19 to the affidavit, to a required 3 months notice. There is no explanation as to why the mother was not required to work to 18 June 2014. Nothing turns on it.
The father spent short periods of time with the child at the mother’s home. The father’s time with the child increased and about once a week between March and May 2014 he collected the child from day care and took him to the mother’s home.
On 21 May 2014 the father made application to the Family Court of Bermuda for urgent, ex parte orders to prevent the removal of the child from Bermuda. It is and was his contention that the orders needed to be made without notice to the mother because she might bring forward her departure. It is the father’s evidence that he tried but was unable to even discuss his access with the mother. On 27 May 2014 the father appeared before the Family Court of Bermuda and obtained an order in the following terms:
It is ordered that:
1. [Mr C], the father, has applied to the Court that [Ms Tredway], the mother, be prohibited from removing their child, [B] (d.o.b. … .11.2013) from Bermuda without further order of the Court.
2. The Court orders that [the child] is prohibited from being removed from Bermuda by virtue of Section 6 of the Children Act 1998, without further order of the Court.
3. This order is registered with Joint Intelligence Unit (JIU) of the L. F. Wade Airport, as [the mother] is scheduled to depart on the 30th day of May 2014 with their son, [the child], with her end destination being Boston, Mass.
4. The Court will hold [the child’s] passport and the Court orders that no further passport especially a Bermudian passport shall be issued until further order of the Court.
The father deposed that at 7.00 pm on 27 May 2014 he told the mother that she would be served with a summons to appear at Court on 9th June 2014 to discuss his access to the child after she left Bermuda. He told the mother that if she signed terms of consent orders the proceedings would be withdrawn. Strangely, there is no evidence as to the orders proposed by the father.
The mother says that on 27 May 2014 the father arrived at her apartment at about 6.50 pm and with a big grin on his face said:
I’ve decided [the child] isn’t going anywhere. You can go but [the child] isn’t. You’ll be served with papers tomorrow. I want to take [the child] overnight. You’re taking him back to Australia and I’ve never spent one night alone with him.
I note that neither party contends that in the conversation on 27 May 2014, the father told the mother that an order had been made restraining the removal of the child from Bermuda.
The mother immediately called her parents. She decided to leave Bermuda as soon as practicable so that the father could not cause her further concern or stress. She took the child to the airport and flew to London. The mother contends and the proceedings before me were conducted on the basis that the mother and the child flew out, that night – 27 May 2014. Perhaps nothing turns on it but the Bermuda police advised[3] that the mother departed Bermuda for London on a British Airways flight on 28 May 2014. In any event, by telephone from London, the mother told her employer and landlord that she had left earlier than planned. On 31 May 2014 the mother and the child flew on a British Airways flight from London to Boston, Massachusetts where they joined the maternal grandmother.
[3] Email dated 3 June 2014, exhibit DG-1 to the father’s affidavit sworn 28 August 2014, annexed to the affidavit of Mr B file 18 December 2014 - page 231 of the tender bundle.
On 2 June 2014 the mother underwent a back operation in Boston and spent 10 days there, recovering.
On 3 June 2014 the father applied to the Central Authority of Bermuda for action under the Convention by way of a Request for a Child Wrongfully Removed. An application was lodged by attorneys instructed by the father with the Trial Court of the Commonwealth of Massachusetts and on 11 June 2014 an order issued from that Court, ex parte, restraining the mother from removing the child from Massachusetts and requiring the surrender of their passports, pending a hearing.
On 12 June 2014 the mother, the child and the maternal grandmother flew to Los Angeles where they waited two days for a planned flight to Brisbane on 14 June 2014. The mother was prevented from departing Los Angeles by FBI, Customs and Border Protection officials. She contacted the Australian Consulate on 15 June 2014 and ultimately, the mother and the child had their passports returned and were permitted to fly, with the maternal grandmother, from Los Angeles to Brisbane on 17 June 2014.
Sometime after 17 June 2014 the child was taken by the mother from Brisbane to Town I on the north coast of New South Wales, where they continue to reside.
On her return to Australia, through lawyers, the mother proposed to the father that they engage in a mediation session to resolve arrangements for the child. Solicitors for the father responded[4] to the effect that they would seek instructions from the father about the suggestion of engaging a mediator. The father did not thereafter respond to the mother’s suggestion.
[4] Email 26 June 2014, exhibit 29 to the mother’s affidavit filed 23 December 2014 – page 593 of the tender bundle.
On 30 July 2014 the father made an application under the Convention in Bermuda that resulted in the transmission of papers to the Australian Central Authority and then to the New South Wales Central Authority, the applicant, who commenced these proceedings on 30 November 2014.
On 9 January 2015 the Supreme Court of Bermuda, in proceedings between the Central Authority of Bermuda and the mother, being proceedings under the Bermudian law adopting the Hague Convention, made the following declaration:
1. By reason of the Order of the Family Court dated 27th May 2014 (“the 27th May Order”), the suspension imposed by section 36C (4) of the Children Act 1998 of the right of the Father to exercise the entitlement to custody and the incidents of custody in respect of the Child was lifted.
2. Consequently, pursuant to section 36C (1) of the Children Act 1998, the Father and [Ms Tredway] (“the Mother”) are equally entitled to custody of the Child, and were so entitled as of the date when the child was removed from the jurisdiction.
3. The Courts of Bermuda have and had at the date of the Child’s removal from Bermuda custodial rights over the Child.
4. The removal of the Child from Bermuda, which was in breach of the 27th May 2014 Order, was wrongful within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction.
5. The Mother, whether in person or through her agents or otherwise howsoever, is prohibited from removing the Child from the jurisdiction without leave of the Court.
6. Costs reserved.
APPROACH
The Abduction Regulations incorporate 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. The return is for the purposes of proceedings about the parenting arrangements for those children.
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 as argued by the parties in these proceedings is that:
(a)The Court must order the child’s return to Bermuda if the applicant satisfies the Court that:
(i) He was habitually resident there immediately before the removal on 27 May 2014;
(ii) His father had rights of custody and would have been exercising those rights but for the removal; and
(iii) The removal of the child from Bermuda on 27 May 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 child’s return to Bermuda if and only if, the mother establishes that:
(i) The father consented or acquiesced in the removal; or
(ii) There is a graverisk that returning the child to Bermuda would expose him to physical or psychological harm or otherwise place him 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
On 9 January 2015 the Family Court of Bermuda found, among other orders and findings, that the removal of the child from Bermuda, in breach of the order of 27 May 2014, was wrongful. A similar finding was made by the Supreme Court of Bermuda on 9 January 2014.
Those declarations do not bind this Court[5]. In In Re J. (A minor)(Abduction: Custody Rights) [1990] 2 AC 562 (“Re J”) at 578[6] Lord Brandon of Oakbrook who delivered the unanimous decision of the House of Lords said at 578 and following:
I consider first the question whether the removal of J. from Australia to England by the mother was wrongful within the meaning of article 3 of the Convention. Having regard to the terms of article 3 the removal could only be wrongful if it was in breach of rights of custody attributed to, i.e. possessed by, the father at the time when it took place. It seems to me, however, that since section 35 of the Family Law Act 1975-1979, as amended of Western Australia gave the mother alone the custody and guardianship of J., and no order of a court to the contrary had been obtained by the father before the removal took place, the father had no custody rights relating to J. of which the removal of J. by the mother could be a breach. It is no doubt true that, while the mother and father were living together with J. in their jointly owned home in Western Australia, the de facto custody of J. was exercised by them jointly. So far as legal rights of custody are concerned, however, these belonged to the mother alone, and included in those rights was the right to decide where J. should reside. It follows, in my opinion, that the removal of J. by the mother was not wrongful within the meaning of article 3 of the Convention. I recognise that Anderson J. thought fit to make a declaration that J. had been wrongfully removed from Australia. I pay to his decision the respect which comity requires, but the courts of the United Kingdom are not bound by it and for the reasons which I have given I do not consider that it was rightly made.
[5] See In Re J. (A minor)(Abduction: Custody Rights) [1990] 2 AC 562 at 578; Resina v Resina (unreported, Family Court of Australia, Barblett ACJ, Fogarty and Anderson JJ, 22 May 1991).
[6] The unsuccessful appeal from the decision of the Court of Appeal in C v S(A Minor) (Abduction) [1990] 2 FLR 442.
As to what is required for wrongful removal, the child is under 16 years of age. The first contentious issue in the case is whether he was habitually resident in Bermuda immediately before his removal on 27 May 2014.
In LK v Director-General, Department of Community Services (2009) 237 CLR 582the 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?
36. 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 27 May 2014, the child’s habitual residence was in Bermuda.
As the case was ultimately argued, it is the contention of the applicant that the child was habitually resident in Bermuda on 27 May 2014 because:
(a)The child took on the habitual residence of his mother and at all relevant times she was habitually resident in Bermuda;
(b)The child was born in Bermuda and lived there for the first months of his life;
(c)The mother’s habitual residence was not affected by the fact that she intended her stay in Bermuda to be temporary; and
(d)Habitual residence is not the same as domicile and the mother lived a settled life for a period in Bermuda.
It is the mother’s case[7] that she took up habitual residence in Australia on the date she departed from Bermuda in December 2013 and that thereby, the habitual residence of the child ceased to be Bermuda.
[7] See the mother’s summary of argument found at Part E on page 8 of her case outline document filed 9 January 2015.
Although not agitated by the parties, there is contradictory evidence about the date of departure. The mother deposes that she and the child left Bermuda on 19 December 2013[8]. However that is not the date she originally booked. On 30 August 2013, the mother booked to depart Bermuda on 18 December 2013[9]. The conditions of the ticket permitted changes of dates and there is no other reason to assume that the mother’s evidence is incorrect. The forward flight from Sydney to Coffs Harbour was on 20 December 2014. That is not inconsistent with either date. The father deposed that the mother departed on or about 18 December 2013 and therefore that does not take the matter any further.
[8] Paragraph 93 of the mother’s affidavit filed 23 December 2014 – page 464 of the tender bundle.
[9] Exhibit 8 to the mother’s affidavit filed 23 December 2014 - page 494 of the tender bundle
It seems to me that the particular date has some importance because the mother’s contention focusses on her departure from Bermuda in December 2013. It is not her case, for example, that the child’s habitual residence changed on some unidentified date prior to 27 May 2014 or that in any event it changed by 26 May 2014.
Further, it is neither sufficient nor necessary on the mother’s case, for the child’s place of habitual residence to be Australia. What is necessary, on the mother’s case, is that immediately before his wrongful removal on 27 May 2014, the child was no longer habitually resident in Bermuda. In any event she may have had difficulty making the case that her habitual residence changed to Australia on 19 December 2013. In Re J Lord Brandon of Oakbrook who delivered the unanimous decision of the House of Lords summarised longstanding authority as follows:
A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.
In Panayotides & Panayotides (1997) FLC 92-733 (“Panayotides”) at 83,897 the majority of the Full Court of this Court (Fogarty and Baker JJ) quoted with apparent approval, a passage from the judgment of the trial Judge in that case, which included the following:
The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:
….
I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:
‘All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’
I do not accept an interpretation of the proposition advanced in In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.
Emphasis added
Even if, as seems to be the position, a different approach is taken in Australia, to that described by Lord Brandon and there does not need to be an appreciable period of time after a move before the new place of habitual residence is adopted, based on Panayotides something decisive is needed to provide a degree of certainty and continuity before the change is found to occur. The problem for the mother is the need to characterise her December 2013 travel to Australia as the start of her new life in Australia rather than as a visit during a period of leave before eventually moving to Australia in the following May. If she was able to do that, she had the additional hurdle of framing her penultimate departure from Bermuda as the decisive step which alone or with other actions or facts evidences a degree of certainty and continuity about her move to Australia. In my view she could not make that case.
The parties have made a substantial investment in these proceedings and the outcome is very important for the subject child, the parties and the father. Rather than being caught up on those issues arising from the mother’s case (the precise date of departure and the mother taking up a new habitual residence in Australia), I will consider the case argued by the parties on this question, to be - whether the child’s habitual residence was no longer Bermuda on 27 May 2014 because it ceased to be Bermuda on the day the mother departed from Bermuda, being on or about 19 December 2013.
There is no doubt that upon his birth, the child was habitually resident in Bermuda. It is the applicant’s case that there was no change to that situation up to and including 27 May 2014. The question arises, how could the child’s habitual residence be changed?
Section 36C of the Bermudian Children Act 1998 provides:
Persons entitled to custody
36C (1) Except as otherwise ordered by a court, the father and the mother of a child have parental responsibility for the child, are joint guardians of the child and are equally entitled to custody of the child.
(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child, including—
(a)the right to care and control of the child;
(b)the right to direct the education and moral and religious training of the child.
(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.
(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.
On 9 January 2015, the Supreme Court of Bermuda, in proceedings between the Central Authority of Bermuda and the mother, being proceedings under the Bermudian law adopting the Hague Convention, made a declaration, including the following:
1. By reason of the Order of the Family Court dated 27th May 2014 (“the 27th May Order”), the suspension imposed by section 36C (4) of the Children Act 1998 of the right of the Father to exercise the entitlement to custody and the incidents of custody in respect of the Child was lifted.
2. …
As I have indicated, the determination of the Supreme Court of Bermuda is not binding on me and I am required to make the necessary findings in the proceedings before this Court. However, there could scarcely be a more authoritative interpretation and application of Bermudian law than that declaration made on 9 January 2015. With the greatest respect to the Supreme and Family Courts of Bermuda, unlike the finding about wrongful removal made by them, there is no scope for arguing, for example, that there may have been a different declaration about rights of custody if the Supreme Court of Bermuda had the benefit of hearing from the mother. The declaration as to father’s rights of custody was made on material that is uncontroversial before me and the declaration itself is not the subject of contention between the parties before me.
It follows and I find, that the father did not have rights of custody in relation to the child until orders were made by the Family Court of Bermuda on 27 May 2014.
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 does not apply here. I turn to the question of how the habitual residence of a child is established when only one parent has rights of custody.
In In Re J Lord Brandon of Oakbrook who delivered the unanimous decision of the House of Lords said at 578 and following:
I consider first the question whether the removal of J. from Australia to England by the mother was wrongful within the meaning of article 3 of the Convention. Having regard to the terms of article 3 the removal could only be wrongful if it was in breach of rights of custody attributed to, i.e. possessed by, the father at the time when it took place. It seems to me, however, that since section 35 of the Family Law Act 1975-1979, as amended of Western Australia gave the mother alone the custody and guardianship of J., and no order of a court to the contrary had been obtained by the father before the removal took place, the father had no custody rights relating to J. of which the removal of J. by the mother could be a breach. It is no doubt true that, while the mother and father were living together with J. in their jointly owned home in Western Australia, the de facto custody of J. was exercised by them jointly. So far as legal rights of custody are concerned, however, these belonged to the mother alone, and included in those rights was the right to decide where J. should reside. …
And later
…
The question then arises whether, immediately before that breach occurred, J. was habitually resident in Western Australia within the meaning of article 3 of the Convention.
It is not in dispute that, immediately before his removal, J. was habitually resident in Western Australia. It was argued for the father that J. remained habitually resident in Western Australia despite his removal to and retention in England by the mother with the settled intention that he should reside there with her on a long-term basis. It was argued for the mother that, once she reached England with J. on 22 March 1990 and retained him there with the settled intention to which I have just referred, J. ceased to be habitually resident in Western Australia and in particular ceased to be so resident well before the date of the order of Anderson J.
In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first point is that the expression ‘‘habitually resident,’’ as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J.’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.
In the light of these points the question which has to be posed and answered is not whether, immediately before the continued retention of J. became a breach of the father’s rights of custody under the order of Anderson J., J. had become habitually resident in England. It is rather whether immediately before that time J. had already ceased to be habitually resident in Western Australia. To that second question it seems to me that, on the special facts of this particular case, only an affirmative answer can sensibly be given. The mother had left Western Australia with a settled intention that neither she nor J. should continue to be habitually resident there. It follows that immediately before 22 March 1990, when the retention of J. in England by the mother began, both she and J. had ceased to be habitually resident in Western Australia. A fortiori they had ceased to be habitually resident there by 12 April 1990, the date of the order of Anderson J. The consequence is that the continued retention of J. in England by the mother was never at any time a wrongful retention within the meaning of article 3 of the Convention.
The circumstances before me are not dissimilar to those in Re J. In the proceedings before me, the father did not have rights of custody until 27 May 2014. Over the relevant period the child was younger than the child in Re J. Therefore, where the infant child B was in the sole lawful custody of the mother, his habitual residence was necessarily the same as hers. It follows that if, as I have interpreted the effect of the mother’s case to be, her habitual residence ceased to be that of Bermuda on the day she departed, being on or about 19 December 2013, so too did the habitual residence of the child. If that is correct, the NSW State Authority’s application must fail.
In order to determine whether the applicant can establish the child’s habitual residence in Bermuda on 27 May 2014, it is necessary to consider the evidence about the mother’s purported change of habitual residence on her departure from Bermuda on or about 19 December 2013.
In summary, it is the mother’s evidence that:
·she was born, raised and educated in Australia and has close and extended family members and friends in Australia;
·she enjoyed and enjoys overseas travel and travelled extensively while at university and since;
·she sought out an opportunity to work overseas as a healthcare worker and with a university friend, in about 2006 took an opportunity offered in Bermuda;
·she intended Bermuda to be a temporary place to live and work and always intended to return to Australia. For those reasons the mother:
o maintained and deposited funds to a bank account in Australia;
o with her father’s help, monitored the housing market in Australia;
o maintained her healthcare worker registration in Australia;
·she travelled extensively and regularly from Bermuda;
·the mother did not buy real estate in Bermuda, living exclusively in rented accommodation;
·prior to the child’s birth, the maternal grandmother suggested that the mother go home to Australia and raise her baby there. Following that conversation the mother decided she would go home to Australia to have and raise the baby. She proposed that to the father and among other things, he said “It’s up to you. I won’t stand in your way. I think you should go home and have the baby so you have the support of your mother”;
·in June 2013 the mother made enquiries about Australian citizenship for the child and about medical insurance;
·in late June 2013[10] the parents had an argument and the mother told the father: “I am going back to Australia before the baby is born and intend making a life for us both there.”
[10] The time sequence in the mother’s affidavit filed 23 December 2014 at paragraphs 62 to 65 is incorrect – page 458 of the tender bundle.
·in June 2013 the parents had a meeting with the father’s girlfriend, Ms H at Ms H’s office. The parents give different versions of the event. The mother deposed[11] that the father said, among other things:
[11] Paragraph 75 of the mother’s affidavit filed 23 December 2014 – page 460 of the tender bundle.
“I don’t want this baby with you. I want the baby with [Ms H].”
“I would not care if I didn’t ever see you again.”
“I’m not seeing you again [the mother’s given name].”
“I will not be contacting you again.”
“It would be best if you returned to Australia to have the baby and to stay there with your family’s support.”
·the mother says that that meeting reinforced her determination that she would definitely return to Australia on a permanent basis prior to the birth of her child;
·the next morning she handed her supervisor her written resignation, which was rejected. The mother says that she then developed a plan with the assistance of her supervisor, whereby she would remain employed until after the baby’s birth but would commence maternity leave when she was seven months pregnant and during that leave would have the baby in Australia;
·at 25 weeks of her pregnancy the father told the mother that he was going on holiday with his girlfriend. The mother says that despite her determination to return to Australia to raise her baby, that caused her to be very hurt, increasingly stressed and anxious. She said that she could not wait to return to Australia;
·the mother was told by her doctor that she could not fly until after the baby was born. In August 2013 she booked flights so she and the baby could spend her three months leave in Australia. She deposed that she and the father had the following conversation:
The mother said: I’m going to take [the child] to Australia as soon as it’s safe for him to travel and will be spending my entire maternity leave plus some vacation time there. I don’t think we will stay very long when we return.
The father said: You are being selfish going back to Australia
The mother said: There’s nothing for me here, you can come to Australia at any time to visit the baby or we can just meet and have holidays together. But you will have to understand there is nothing here for me, no family, we are not in a relationship, I can’t improve by work situation and you know I’m not happy.
The father said: Well I’m disappointed that I won’t be part of my son’s life how I want to be but I won’t stand in your way if that’s what you want to do.
·it transpired that the mother worked until she was 35 weeks pregnant and as soon as practicable after the child’s birth, on or about 19 December 2013 she and the baby flew to Australia where they stayed for the duration of the mother’s leave entitlements;
·before departing from Bermuda in December 2013 the maternal grandmother purchased clothing for the child including winter clothes for the Australian 2014 winter;
·the mother obtained a visa for the child’s entry into Australia. The visa application included the following reason for the visit to Australia: “Newborn baby going to Australia for first Christmas. To meet grandparents”;
·after the child’s birth and during an argument about the name under which he would be registered, the mother said to the father: “there have been too many issues in this pregnancy, you have made it very difficult. We are not in a relationship and [the child] and I will be returning to Australia permanently. It makes more sense and easier if he has my name only.”
It falls to the applicant to establish habitual residence. It is agreed that the child was habitually resident in Bermuda before 18 December 2013. The mother contends and the applicant disputes, that his habitual residence ceased to be Bermuda when the mother left Bermuda on or about 19 December 2013. In my view the mother cannot justify that claim. The mother can only rely on her intentions and events up to and on the date of departure. If her habitual residence ceased to be Bermuda on or about 19 December 2013, nothing after that could confirm that change. On the other hand things done or thought after that date could suggest that her intention on or about 19 December 2013 was not sufficient to achieve a loss of habitual residence.
I have summarised the facts relied on by the mother notwithstanding that they are not all agreed. Some are disputed, some are unclear because of the problems of the mother’s affidavit referred to earlier and in any event much of her evidence could never be tested. Even putting the mother’s position at its highest, and taking the summarised facts as proven, some of them are equivocal. In several instances, the mother’s evidence suggests a degree of ambivalence in her relationship with the father. For example at several points she was hurt and upset by the father’s ongoing relationship with his girlfriend or by his rejection of her. She is not to be criticised or doubted because of that. It accords with a general understanding of human relationships but all the more reason for caution about extracting from a set of facts a settled intention not to return to Bermuda in favour of long-term residence in Australia.
The mother’s evidence does not give any special import to the fact that she flew out of Bermuda on or about 19 December 2013. She did not communicate in any fashion, to the father or any person or body, that by her departure on that day she was abandoning her habitual residence in Bermuda. In the child’s visa application she told the Australian Government something very different, that this was a visit to introduce a newborn to his extended family.
Importantly, the December 2013 flight was not the mother’s final departure from Bermuda. Unlike the situation of the wife in In Re J the mother planned to return to Bermuda after about 3 months and to work there for not less than a further three months. The mother’s statement in August 2013:
I’m going to take [the child] to Australia as soon as it’s safe for him to travel and will be spending my entire maternity leave plus some vacation time there. I don’t think we will stay very long when we return.
Emphasis added
suggests that she was not certain about how long she would remain in Bermuda after her return in February 2014.
There is nothing that the penultimate departure on or about 19 December 2013, added to the mother’s growing or settled intention to move to Australia. Why would that be the event that triggered a change in habitual residence and not the mother’s growing and emphatic, expressed intention to move back to Australia in the middle of 2013. Why was the critical event not her ultimate departure from Bermuda on 27 May 2014? What if after returning in late February 2014, the mother reached some compromise with the father and decided to stay on? Would that have reversed her asserted December 2013 abandonment of habitual residence in Bermuda?
I am satisfied that the applicant has made out a case of habitual residence at the time of removal. I find that the child was habitually resident in Bermuda immediately before his removal on 27 May 2014.
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.
With the authoritative assistance of the Supreme Court of Bermuda, I have found that the father had rights of custody immediately before the child’s removal from Bermuda on 27 May 2014.
Rights of custody in relation to the child also vest in the Bermudian Courts but it was submitted on behalf of the applicant: that is of no assistance where none of those Courts has made application under the Convention.
Was the Father Exercising Rights of Custody
The next issue in the case is whether the father was exercising his rights of custody or would have been exercising them but for the child’s removal.
There is no doubt that the father would have been exercising his rights of custody but for the removal. During those parts of the child’s short life, when he was in Bermuda, the father had cared for him from time to time. The father was involved in exercises of parental responsibility for the child. The father consented to the child’s visa application, to the child having Australian citizenship and to the issue of a passport for him and by his application to the Family Court of Bermuda on 21 May 2014, conclusively demonstrated a current interest in having a voice in where the child lived.
Was the Removal on 27 May 2014 in Breach of the Father’s Rights of Custody
There is no doubt that the removal was in breach of the father’s rights of custody. It is far from clear whether the mother knew that was the case but it was the fact in any event.
From the time of the making of the orders earlier in the day, the father had the right to be consulted and heard about an international relocation of the child. But for these proceedings, the mother’s removal of the child later that same day made the exercise of those rights, substantially more difficult.
It follows that I find that the child was wrongfully removed from Bermuda on 27 May 2014. I am required to order his return to Bermuda unless the mother can establish a basis for enlivening a 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 child’s removal and that there is a grave risk that a return to Bermuda would cause the child to suffer psychological harm or otherwise place him in an intolerable position.
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 proving that the father consented to the removal.
The determination of an issue about consent was discussed by the Full Court of this Court in the case of Wenceslas v Director-General, Department of Community Services (2007) FLC 93-321 (Wenceslas).[12] 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.
[12] 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. [13]
[13] 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 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 gave oral consent 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 later:
However, that is not the issue which is principally troubling me. The issue which concerns me is that at the time when the father said what he did the mother was undecided as to whether or not she would return to the USA. It was only later that she decided that she would not return and, from the moment that that decision was communicated, the father indicated (I am satisfied) that he was unhappy with it. But the mother’s evidence was of an unequivocal acceptance that if she did decide to stay in this country she could keep C here. It is not a case in which the mother changed her mind. It is a case in which she made up her mind.
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 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 in 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 parties held a ‘garage sale’ which the mother 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 removal 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 parties 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.
Suffice it to say, that a finding of grave risk is not available on those facts.
Next, the mother contends that grave risk arises because there is in turn a risk that she will suffer from depression if the child is required to return.
Dr F’s evidence on those issues is:
I am concerned after discussion with [the mother] that there is little or no support in Bermuda for her. She is at risk of significant depressive disorder and could not undertake work to support herself whilst caring for her child. If she became ill, there is no one to care for her (as well as the infant.).
There is no authoritative evidence that the child is at grave risk of psychological harm because the mother is at significant risk of suffering depression. There is no authoritative evidence that the mother is at risk of depression. In any event there is no evidence that treatment for depression is not available in Bermuda.
I am not entirely sure what would give rise to the suggested depression. Of course care must be taken with any suggestion of grave risk to the child as a result of the mother’s wrongful removal of the child and the potential for such claims to entirely frustrate the purposes of the Convention.
The mother gives evidence about physical violence inflicted on her by the father and her being intimidated and overborn by him on occasions. Assuming that those matters constitute much of the potential catalyst for the mother suffering depression, if required to return, I will seek to address what there is of that evidence.
The context of the mother’s evidence is that she met the father in 2006, that they became friends and despite each of them maintaining other relationships from time to time, they had a sexual relationship for periods, thereafter. The mother contends that she became pregnant to the father on three occasions.
The mother’s allegations about conflict and violence are as follows:
Date
Evidence[28]
Detail
June 2013
Para 64
The mother returned from work at 8.00 pm and found the father and a friend at her home. The father barred her entry into her apartment. The father became angry and grabbed the mother’s arm to stop her entering the apartment. The mother became scared and called the police. The police escorted the father off the property.
At or about 26 weeks pregnant
Para 75
The mother, father and the father’s girlfriend, Ms H met at Ms H’s office. For about 2 hours the father and Ms H yelled at the mother about the baby and berated her. The mother felt extremely upset, threatened, humiliated and abandoned
November / December 2014
Para 87
The parents discussed the child’s name. The father became very angry.
Date not provided
Para 88
When the mother gave the father the child’s birth certificate application to sign, the father became angry and snatched the form from the mother and tore it up. The mother felt threatened and quite frightened. The father stormed out and returned shortly thereafter. He aggressively put the form in front of the mother and demanded that she fill it out. The mother refused and started to cry. The father became angrier. The mother was increasingly concerned for her safety. The father was threatening, yelling and standing over the mother. The mother was frightened for the child. Ultimately the mother signed the form.
December 2013 – March 2014
Para 101
While the mother and the child were in Australia the father initiated contact with the mother on one occasion. He berated the mother saying words to the effect: “Why haven’t you called me? How’s my son. You’re so fucking selfish.” It would be the mother’s evidence that the father yelled and screamed at her.
N/A
N/A
The mother alleged that at various times the father was loud and intimidating when making demands about the child. He demanded to see the child, demanded that the mother take the child to see the paternal grandmother and demanded that the mother express milk or to express more milk, so that he could have the child overnight.
March 2014
Para 104
On the mother’s return to Bermuda the father verbally abused her in the presence of his mother. He yelled: “You should have taken [the child] to see my mumma. That’s his nanna, she wants to see him too you know.”
After March 2014
Para 107
The father began turning up at the mother’s apartment demanding to see the child, saying in a loud voice: “Where is [the child] I want to see him.” On the occasions that the father attended to see the child he often woke the child, yelling and being generally loud.
Date not provided
Para 109
On one occasion the father turned up at the mother’s apartment and said aggressively: “Where’s [the child] I want to see him.” And “I want to see my son”. He refused to leave and pushed passed the mother and went to the baby’s room. The mother tried to ring the police but the father grabbed the telephone and threw it away. He grabbed both her arms, pinning them behind her back. She wriggled free and tried to shut the father out of the child’s room. The father forced the door open, cracking it in the process. The mother picked the child out of the cot and cowered in the corner of a room with the child screaming in her arms. The father screamed profanities at her as he left. The mother was left with bruises on her wrists and arms.
Various dates
Para 114
On each occasion the father returned the child from daycare, he became angry and began yelling at the mother: “You think you know everything about a baby. You have so many excuses to try and stop me from taking [the child] for longer. You can just pump milk and give it to me.”
May 2014
Para 125
In the mother’s last week in Bermuda the father asked again if he could have the child overnight. The mother again refused citing that the child was breastfed. The father then asked if he could come to Australia at Christmas time and take the child to Florida. The mother says that she rejected that request. The father became very angry and aggressive. He hit his hands on the lounge and spoke to the mother in a threatening way.
Submission
Para 140
The mother deposed that she is concerned that the father is an angry, controlling personality and that they argued constantly. She is concerned that if she returns to Bermuda her arguments with the father will increase as they are so diametrically opposed in relation to how the child should be brought up. Prior to the mother departing Bermuda on several occasions when the parents argued, often the child was present and despite the mother’s efforts to remove him to a bedroom, the father continued to yell and become agitated. The mother does not want the child to grown up in a negative environment.
[28] See the mother’s affidavit dated 23 December 2014 – page 449 onwards in the tender bundle.
There is no independent corroboration of the mother’s evidence.
The father categorically denies any violence or aggression towards mother or child[29]. He makes a similar denial in relation to threatening or intimidating behaviour. One reason for favouring his evidence is the fact of the mother’s inconsistent behaviour in the face of the asserted violence and threats.
[29] Paragraph 106 of the father’s latest affidavit dated 9 January 2015 – page 664 of the tender bundle.
Discussion
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 defence 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 the mother’s allegations are denied and there is no corroboration, independent or otherwise of the mother’s allegations. The mother successfully obtained the help of the Bermudian police on the one occasion she sought it. There is no suggestion that such assistance would not have been provided again.
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. The evidence in that case was that on return the parents would not be living together and there was no evidence that the father had ever breached a domestic violence order. However, as to the degree of threat in Harris, among other findings of violent abuse, 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 preponderance of the mother’s evidence is of appropriate behavior and communication between the parents. The mother deposed that she sought and obtained the assistance of the father, including his assistance in caring for the child. She invited the father to care for the child while she packed up her possessions in May 2014. She invited the father to care for the child when she was in a Boston hospital and recuperating. How could the child be exposed to a grave risk of psychological harm by being with the mother in the same country as the father until parenting proceedings can be completed and yet safe with him alone while the mother was in hospital or safe while the mother was recuperating and exposed to him in a strange city?
The mother deposed[30]: “At all times I have been supportive of [the father] seeing [the child] and gradually increasing his time with him, while we were in Bermuda.” That is entirely inconsistent with the mother’s grave risk case. Further, upon her arrival in Australia, the mother made overtures in relation to mediation. Assuming that contemplated physical contact between father and son, why would she promote such contact if the alleged risks exist? Putting aside the age appropriateness of it, the mother has persisted in facilitating electronic communication between father and infant son. These facts are inconsistent with the mother’s case.
[30] Paragraph 111 of the mother’s affidavit filed 23 December 2014 – page 469 of the tender bundle.
As I have referred to above, the mother obtained police assistance on one occasion. There is no suggestion as to why the mother did not seek police assistance on other occasions. There is no suggestion as to why the mother did not investigate and if available, invoke any other protective mechanisms in Bermuda. There is no suggestion as to why she could not do that on return. I take judicial notice that there would be mechanisms available under the criminal law or as part of parenting proceedings for the protection of a child from conflict, violence or a dangerous person. One reason why she did not adopt any of those courses could be that she did not consider them necessary. The difficulty for the mother in this regard is that she said that she wanted and apparently wants the father to spend time with the child.
The mother does not suggest that there is or was any impediment or disadvantage to her accessing the Bermudian legal system.
As to practical matters, albeit faintly, the mother raises an issue about the lack of practical and personal support for her in Bermuda. There is no probative evidence in that regard. There is no probative evidence that the mother could not work in Bermuda and no evidence that she would have no support in Bermuda. For example, if all other mechanisms and options failed, the maternal grandmother might be available. At the mother’s request, she flew to Boston to care for the child and the mother in June 2014. There is no suggestion that she would not provide assistance to her daughter and grandson during the period needed for a Bermudian court to become seized of the matter. The maternal grandmother is on affidavit but she does not say that she could not provide such assistance if needed. The mother’s friend Ms E deposed that she planned to return to New Zealand late last year. It may be that her plans were or could be deferred for a period that will allow appropriate interlocutory orders for support to be made in the projected Bermudian parenting proceedings.
Finally, there is capacity for this Court to establish conditions in respect of return. Those conditions could ensure, at least pending the Bermudian Court dealing with such interlocutory matters, that on return there was appropriate accommodation for the mother and child, adequate financial support, proper safeguards if needed in relation to any interaction or communication between the parents. If needed the father could be invited to provide or secure those matters as a condition of return. The mother would have an opportunity to be heard in regard to such conditions.
Conclusion on Grave Risk
The evidence does not support a finding that on return to Bermuda, the child would be exposed to a grave risk of psychological harm or placed in an intolerable situation.
Grave risk is not established. The grave risk in question is grave risk of psychological harm to the child. It needs to be remembered that the return of the child is not a return to the father but a return to Bermuda. Even then, the return is not for the purposes of the child residing in Bermuda but for the purposes of a decision being made about his living and communication arrangements.
Understandably and very properly, the mother says that she would return to Bermuda if the child is required to return. The child is an infant and therefore extremely vulnerable. He has no capacity for self-protection and is entirely at the mercy of his carers. However, it cannot be successfully argued that the risk of psychological harm to the child would warrant the description, grave.
CONCLUSION
I am satisfied that the mother has established that the father consented to her removal of the child. The Court is therefore able to consider refusing to order his return to Bermuda.
It was submitted for the applicant that it is relevant to the exercise of discretion, and would warrant an order for return, that the mother fled upon being given notice of the proceedings in the Bermudian Court
For the mother it was submitted that return should be refused because the father failed to engaged with or respond to her overtures about mediation.
In Re K Justice Hale addressed the discretionary matters as follows:
However, I have held that the defence of consent is established. That does not conclude the matter. It merely gives me a discretion in terms of the Convention whether or not to order C’s immediate return. In exercising that discretion a variety of factors, which will depend, to some extent, upon the circumstances of the case, have to be weighed in the balance. One of the factors is the most appropriate forum within which any dispute between these parents about the future of their daughter should be decided. There is no doubt that their main connection is with Texas. C’s main connection is with Texas. It is where she was born. It is where she has lived all her short life until October 1996. It is where the home in which she lived is situated. It is where her father and her father’s relatives, including the grandmother, who has played a large part in her care, are situated. So, in terms of the closest connection it is obvious that Texas wins.
There are, however, no proceedings which need influence the matter. The father wishes the divorce proceedings to take place in Texas, and it may very well be that even if the English courts have jurisdiction as a result of the mother’s domicile here -- and I am making no observations about that -- it will be more appropriate for any divorce proceedings to take place in Texas. But the question is not where the divorce proceedings take place, it is where any proceedings about what is to happen to C will take place.
I am entitled to take into account the likely outcome of any such proceedings, and Ms Ramsahoye, very fairly on behalf of the father, says that it is unlikely that the Texas courts would adopt any different approach from that which would be adopted in this country. They will regard C’s welfare as the paramount consideration. They will, of course, be concerned to preserve as good a relationship as possible with each of her parents, but they will take into account how young she is; they may take into account that she is a little girl. I know not. They are likely to have evidence before them similar to that which has been given to this court by Professor Newson, although they may also have other evidence. It may, therefore, be surmised that it is more likely than not that they would conclude that C should live with her mother. Whether they would also conclude that she should have leave to come to this country, again, I know not. It is, perhaps, more difficult to predict the outcome of that sort of application. But there would certainly be a reasonable chance of its success were such an application to be made in the reverse situation in this country.
As well as all of those considerations, which have to do with the proceedings, I can take into account the welfare of this little girl. It is not the paramount consideration, but it is a relevant one. It is clear that mother and child should not be separated and that is now accepted on the part of the father, although he says he would like C to live with him. It seems clear as a result of these proceedings that they cannot be expected to live in the same house together. The father’s mother offers to accommodate them in her home and, on the face of it, this is an attractive proposition because the grandmother has spent so much time looking after C and so she will be familiar with the home and the surroundings. I have every sympathy for the grandmother in this case, but I am bound to say that the terms in which the offer is couched, as stated in the bundle, are not such as to suggest that mother and child together will find it a comfortable experience living with her in these circumstances. The effect upon the child of a return to Texas in those circumstances has to be borne in mind. In addition to that I take into account that the father has offered support, but the financial situation is such that this is a difficult matter for him and he is clearly very seriously troubled about the level of debt that there is in Texas. One is bound to have reservations about how sustainable that offer would be.
I appreciate that the normal purpose of such undertakings is only to tide things over until the Texas court is able to take control of matters and the evidence is that the Texas court can take control very quickly indeed. Nevertheless, when one is looking at things in terms of the court’s discretion, one is entitled to give rather more weight to the welfare considerations, which suggest quite firmly, in my view, that C would be better off with her mother here for the time being, than one would when one is considering a defence under Art 13(b).
The final thing which I have to weigh in the balance is the purpose of the Convention. This is something to which the courts attach the greatest possible importance. We all want children to be returned as soon as possible to the place from which they have been wrongfully removed. The reasons why the Convention exists to secure this are partly that it is bad for children to be uprooted from one jurisdiction to another and partly to fulfil the obvious proposition that if there is a dispute between parents as to the future of their child it is better dealt with in the courts of the country where the child has hitherto been habitually resident because that is where the best information lies.
However, I have to bear in mind in particular that that factor has a different weight in a case in which consent to the removal or retention has been established. Indeed, in cases of consent, all of those factors carry a rather different weight. But if it has been agreed between parents that a mother may bring her child to another country and, if she so chooses, remain here with the child, then frustrating those two purposes of the Convention scarcely comes into question. I do, however, take it into account because of the evidence of a very swift change of mind on the father’s part.
It seems to me that the following matters are relevant:
First, there is the need for available Courts in each jurisdiction. There are Courts in both jurisdictions and albeit only on an ex parte basis, the Bermudian Courts are already seized of the matter. This factor slightly favours return to Bermuda.
Next, there is the likely outcome of the proceedings. I am satisfied that broadly similar laws will be applied in each jurisdiction. In similar terms to the provisions of Part VII of the Family Law Act 1975 (Cth), sections 5 and 6 of the Children Act 1998 (Bermuda) provide:
5. The purposes of this Act are to protect children from harm, to promote the integrity of the family and to ensure the welfare of children.
6. In the administration and interpretation of this Act the welfare of the child shall be the paramount consideration.
The outcome of the proceedings will depend to some extent on the issues finally agitated by the parents but as things stand, the father is not seeking that the child live solely or mainly with him. The father has conducted himself over the last 18 months or so, on the basis that the child would live mainly with the mother, in Australia. Within those parameters the likely range of outcomes for a very young child are obvious. However, during May 2014 he apparently changed his mind. He has asked the Court in Bermuda to make orders for him to spend time with the child each week. Obviously, such an order would be unworkable unless the mother too lived in Bermuda to care for the child during the balance of each week. This concept was very much a matter of sudden invention and no doubt the father will be asked to explain his change of mind. As to the particular order that might be made, at one point the father proposed that he collect the child, then a child of 13 months; take him from his mother for the first time; presumably for a week or more; fly him to Orlando, Florida for a holiday; and then fly him back to the mother in Australia. One needs to be cautious about the possible range of outcomes in a highly discretionary jurisdiction such as Australian family law but I can predict with some confidence that no judicial officer would countenance such a proposal. Perhaps there was some element of the proposal that the father did not have the opportunity to fully develop but as described I would not be sanguine about his chances of securing such an order in Australia or Bermuda or in any other civilised jurisdiction.
The welfare of the child is a relevant, but in this context, not the paramount consideration. Given the child’s age, his connection with his primary carer is very important. The only viable arrangement identified to date is that of the mother. There may be a suitable arrangement available in Bermuda, but it would probably require the father to provide or underwrite the mother’s accommodation and financial support there while she attempted to get on her feet. I do not have a record of being told that he had agreed to do that.
Finally, there is the purpose of the Convention. Justice Hale in Re K cited “the obvious proposition that if there is a dispute between parents as to the future of their child it is better dealt with in the courts of the country where the child has hitherto been habitually resident because that is where the best information lies.” Unlike the situation for an older child, there is not the potential in his case for evidence to be required from treating medical practitioners or therapists; school teachers; friends or family members. The primary care giver and her family connection is mainly in Australia. The father is in Bermuda but it is apparent that there is no impediment to him travelling and perhaps that would be feasible for the purpose of parenting proceedings. There are two grandmothers and albeit because of the wrongful removal, I can confidently find that the maternal grandmother has had more time with the child and probably a closer connection with him, than the paternal grandmother. The child has in fact lived for more time in Australia than in Bermuda. Importantly, by his consent, the father approved the departure of the child to Australia.
As to the mother’s conduct on 27 May 2014, on the evidence, this is a case in which the mother had no way of knowing that the removal was wrongful. The father in fact had no rights of custody until a matter of hours before the mother left Bermuda.
On balance those matters favour the mother’s case.
In my view the discretion enlivened by the father’s consent to the mother removing the child should be exercised by refusing to order the return of the child.
The application of the Secretary of the New South Wales Department of Family and Community Services shall be dismissed. The parties will be able to bring the matter back in relation to any consequential orders.
I should acknowledge the assistance of the parties’ lawyers and in particular of their counsel. Through solicitors and counsel, the applicant was a model litigant and the mother’s case and presentation also focussed on the issues and aided in the efficient disposition of the proceedings. In particular I was greatly assisted by the thorough presentation and thoughtful submissions of the parties’ counsel.
I certify that the preceding two hundred and nine (209) 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 & TREDWAY [2015] FamCA 17
- Case
- [2015] FamCA 17
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the child had been wrongfully removed from Bermuda, within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, and whether any of the defences under Regulation 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 were applicable. Specifically, the court considered whether the father had consented to the child's removal and, if so, whether it was too late for him to withdraw that consent for the purposes of the defence under Regulation 16(3)(a)(ii). The court also considered whether the removal or retention of the child involved a grave risk of physical or psychological harm or would otherwise place the child in an intolerable situation.
In its reasoning, the court found that while the child had been wrongfully removed from Bermuda, the father had consented to the mother's removal of the child. The court determined that, in accordance with established principles, once the mother acted on that consent, it was too late for the father to withdraw his consent for the purposes of the defence under Regulation 16(3)(a)(ii). Furthermore, the court concluded that the threshold for establishing a grave risk of harm or an intolerable situation was not met. Applying these findings and weighing the various factors, including the spirit of the Convention, the court exercised its discretion to refuse the return of the child.
Consequently, the Amended Application of the Secretary of the New South Wales Department of Family and Community Services was dismissed. Leave was granted to the parties to restore the proceedings to the list for any consequential orders.
Orders
Orders of the court
1.
The Amended Application of the Secretary of the New South Wales Department of Family and Community Services filed 24 December 2014 is dismissed.
2.
Leave is granted to the parties to restore the proceedings to the list on giving seven days’ notice to the Court and each other in relation to any consequential orders.
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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