Secretary of the Attorney-General & Stamatelos

[2008] FamCA 1117

FAMILY COURT OF AUSTRALIA

SECRETARY OF THE ATTORNEY-GENERAL & STAMATELOS [2008] FamCA 1117

FAMILY LAW – CHILD ABDUCTION - Hague Convention – whether there was a wrongful retention in Australia – father agreed to mother giving birth to child in Australia – child and mother travelled to the United States of America – parents separated – mother returned with child to Australia with father’s consent – whether mother’s failure to return to the United States per Massachusetts court orders amounts to a wrongful retention – whether the child was habitually resident in Australia at the time of the alleged wrongful retentions – intention of the parents – child not habitually resident in the United States – child habitually resident in Australia – application dismissed

FAMILY LAW – CHILD ABDUCTION – Hague Convention – conflicting evidence – mother’s evidence preferred – alternatively, unable to find father’s evidence is correct – Central Authority fails to meet burden of proof – application dismissed

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Wencelas & Department of Community Services (2007) 37 FamLR 271
Re J (a Minor) [1990] 2 AC 562
In the Marriage of McCall; State Central Authority (1995) FLC 92-551
Hanbury-Brown & Hanbury-Brown; Director General of Community Services (1996) FLC 92-671
Commissioner, Western Australia Police v Dormann (1997) FLC 92-766
Re V (a Minor) [1995] 2 Fam LR (Eng) 992;
Re A [1998] 1 Fam LR (Eng) 497
Kilah & Director-General, Department of Community Services (2008) FLC 93-373
Panayotides v Panayotides (1997) FLC 92-733
DW and Director-General, Department of Child Safety (2006) FLC 93-255
HBH v Director-General, Department of Child Safety (2006) 203 FLR 158
Re F (a Minor) [1992] 1 Fam LR (Eng) 548
Re S (a Minor) [1998] AC 750
Re M [1996] 1 Fam LR (Eng) 887
Re A [1998] 1 Fam LR (Eng) 497
Cooper v Casey (1995) FLC 92-575 at pp 81,696

APPLICANT: Secretary of the Attorney-General as State Central Authority

RESPONDENT: Ms Stamatelos

FILE NUMBER: CAC 2347 of 2007

DATE DELIVERED: 22 December 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE:

3 November 2008;

2 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berger

SOLICITOR FOR THE APPLICANT: Mr Sekler

COUNSEL FOR THE RESPONDENT: Ms Tonkin

SOLICITOR FOR THE RESPONDENT: Ms Smithies

Orders

1. The application brought by the Central Authority is dismissed.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2347 of 2007

SECRETARY OF THE ATTORNEY-GENERAL

Applicant

And

Ms Stamatelos

Respondent

REASONS FOR JUDGMENT

Introduction  

1. This is a matter brought under the Family Law (Child Abduction Convention) Regulations 1986 and seeks pursuant to those Regulations that the Court make an order that the Respondent mother, in effect, return the child … born … November 2006 (“the child”) to the United States of America upon such conditions as the Court believes to be necessary in accordance with the provisions of the Hague Convention on Civil aspects of International Child Abduction.  It seeks orders also that the respondent pay the costs of the Central Authority of and incidental to the application.

2. The application is made within one year of the alleged wrongful retention (or abduction although for reasons I will indicate later the later term is not appropriate) and hence the provisions of Regulation 16(2) do not apply.

3. I am obliged to make an order for the return of the child if;

   (a)      the child was under 16 (years)

   (b)the child habitually resided in a convention country immediately before the child’s removal to or retention in Australia. (this is a matter for determination)

   (c)the person 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 if 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.

4. I set out a chronology of the relevant events :

chronology since birth

Date

Event

10 September 2006

Mother (pregnant) travelled to Australia

November 2006

Child was born in Australia

4 – 30 November 2006

Father in Australia

December 2006

Father puts house in USA on the market

20 January – 4 February 2007

Father in Australia

4 February 2007

Mother, Father and child travel to USA – waiting for house to sell

15 May 2007

The parties finally separated.  Mother begins packing to return with child to Australia.  Father indicates he will attempt to arrange remote working to work in Australia part of the year.

24 May 2007

Mother served with divorce papers and motion to prevent mother leaving Massachusetts with child.  Father indicates to mother that he wants written agreement to provide him access to child. 

5 June 2007

Mother files a response and counterclaim seeking custody of child and authority of the court to move to Australia with child.  Her affidavit in support asserts that the father had agreed that the child would live in Australia, that he would be there as well, that he would and that the child was only a tourist in USA when they visited. 

11 June 2007

Interim court orders made anticipating that mother and child would live in Australia and return to visit USA for 2 months per year. 

11-22 June 2007

Mother asserts she booked one-way tickets to Australia, gave some not needed furniture away, emailed her employer to say that they were moving permanently to Australia (Annexure C to affidavit filed 12 September 2008), farewell party organised

23 June 2007

Mother and child return to Australia with father’s knowledge.

27 July 2007

Mother applies for Family Tax Benefit and told to apply for child support

18 September 2007

Orders made in Massachusetts requiring mother’s return to USA for hearing in October.  Hearing adjourned to October.  Subsequent reconsideration of the order meant mother not required to attend in October.

27 September 2007

Mother asked father to withdraw divorce petition so parties could agree privately (also asked on 24 Sept).  According to the mother, the father tells her for the first time that he will not move to Australia and that the will do what he can to keep the mother and child in USA and that he no longer intended to work in Australia

26 October 2007

Massachusetts court date – challenge to jurisdiction.  Trial date set for 13 December.  Mother ordered to return to USA from 6 – 17 December.

9 November 2007

Mother purchased plane tickets (Annexure F to mother’s affidavit file 12 Sept 08)

6 – 17 December 2007

Mother ordered to return to USA for hearing.  Child became ill and could not travel – mother did not attend court.

7 December 2007

Family Court of Australia proceedings initiated

Wrongful retention said to have commenced

11 December 2007

Massachusetts court rejects jurisdictional challenge

25 January 2008

Family Court of Australia interim application – child on airport watch-list, not to be removed from Australia

30 January 2008

Mother files stay application in Massachusetts court

31 January 2008

Massachusetts status conference

1 February 2008

Massachusetts court denies mother’s stay application

14 February 2008

Mother ordered by Massachusetts court to return to USA for child to visit father between 29 February and 17 March.  The mother did not do so because of cost

14 April 2008

Central Authority not able to proceed with Hague application.  FCoA order for a Hague application to be filed by 23 May.

23 May 2008

Family Court of Australia Less Adversarial Trial ordered to commence

3 June 2008

Hague application filed

The issues for determination

1. In accordance with the provisions of the Regulations it is necessary that I should determine a number of issues:  the first being where the child was habitually resident immediately before the child’s removal to or retention in Australia; the second that the father 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; three the child’s removal to or retention in Australia is in breach of those rights of custody and; four whether at the time of the child’s removal or retention the father was actually exercising the rights of custody or would have exercised those rights if the child had not been removed or retained.

2. Although it would have remained open for the Probate Court of the Commonwealth of Massechusets to have brought proceedings in its own right[1].

   [1] Wencelas & Department of Community Services (2007) 37 FamLR 271 – this has not been the Central Authority’s position and is not a matter that I need to consider or determine.

Wrongful retention

1. If the Central Authority is to succeed in its application it must establish that there was a wrongful retention in Australia.  The Authority nominated the dates for such wrongful detention being 7 December 2007; 1 March 2008 and/or 16 June 2008

2. It is clear that the wrongful retention did not occur on 18 September 2007 because the mother’s attendance (let alone the child’s) was not required, see the order above.

3. As appears from the chronology, the mother sought a child support assessment.  She explains why that occurred but irrespective of the motive, it provoked a negative reaction from the father.  It seemed also to provoke some sort of negative response from the Court which asserted in an order made on 18 September 2007 its exclusive jurisdiction over matters between the parties relating to the divorce and associated actions.  One order made by the Court on 18 September 2007 was “The Defendant Mother shall return to the US with the minor child on or before October 24, 2007 and she and the Plaintiff Husband shall be present in the Court on October 26, 2007 for a further status conference before this Court.”  It is to be noted that the requirement that the mother return with the child is not necessarily consistent with the mother’s return only for the purposes of the status conference.  This addition to the order may have constituted an assertion of authority on the part of the Massachusetts Court or it may have been surplusage.  Whatever the reason or intent, the order was made but its status needs to be considered in the light of the fact that proceedings were before the court and the order for return related to those proceedings, not to a re-establishment of the child in the United States.

4. The mother filed an application to seek that she be excused from returning to the United States on 24 October 2007 for appearance on 26 October 2007.  The Massachusetts Court allowed the Motion by the mother and directed “the Defendant shall raise by motion any challenge to jurisdictional matters, including without limitation the home state of the minor child within 30 days after which there will be an evidentiary hearing.”  I note that thereby, the mother was excused from attendance with the child in America on 24 October 2007.

5. On 26 October 2007 at the previously scheduled Status Conference, the parties were ordered to present a Joint Scheduling Order and this joint order was provided on 2 November 2007 which provided that the wife would return from Australia to Massachusetts with the child by 6 December 2007 and “the parties agreed that the minor child shall remain in the Commonwealth of Massachusetts until 17 December 2007, without prejudice, or until further order of this Court.” 

6. Again, nothing in the terms of the court orders by determination and by the joint scheduling order, required the return of the child other than on a temporary basis.

7. On the date on which the mother was due to return to the United States in accordance with the joint scheduling order (for December) the mother filed an ex-parte motion asserting that the child was ill and could not travel.  On that day, the court denied the mother’s motion and affirmed the requirement for her and the child to return to the United States on 6 December 2007.  The mother did not return, although she commenced proceedings in Australia.  Again it is to be noted that this failure to return related to a temporary visit only and didn’t impact upon the question of where the child was to live permanently (or for that matter had been habitually living).

8. On 31 January 2008 a status conference was held in Massachusetts.  The mother was not in attendance although she was represented by Counsel and on 1 February 2008 the Court denied the mother’s motion to stay all divorce proceedings as they relate to child custody and visitation. 

9. On 14 February 2008, the Massachusetts Court in a document appearing at page 89 of the application documents, ordered that the mother and child return to the United States from February 29, 2008 until March 17, 2008 “to permit the Plaintiff to visit with the child….the defendant will be allowed to return to Australia…”.  Again, while an order was made by the Court requiring the return of the mother, it was for the purposes only of visitation and not for any other purpose and specifically authorised the mother to return to Australia at the end of the period of visitation.  Again such an order does not appear to impact upon where the child was habitually resident.

10. The last of the three dates possible is 8 June 2008 which was the date on which the mother was due to return to the United States for three months in accordance with the stipulation in the interim orders.  I repeat my earlier comment that the stipulation document is to some extent ambiguous.

11. The child has physically lived for all but some three months of his life in Australia and leaving aside any question of intent (which clearly cannot be disregarded) it would be obvious that his habitual residence was Australia.

12. In accordance with the intent and purpose of the Convention it cannot be the case that one party can subvert the effect of the regulations and Convention by obtaining consent for a temporary absence and converting it into a habitual residence by refusing to return the child at the end of the period for which consent has been given.  Equally, consent once given can not be unilaterally changed to bring about a different situation from that originally pertaining.

13. On the uncontentious facts, there had been no determination about where the child was finally to live.  I will consider the evidence of the parties themselves separately but put at its lowest, the situation appears to be non-contentious that the mother wished to live in Australia and (possibly) the father wished to live in the United States.  The father had given permission effectively at least temporarily for the mother to live for a substantial part of her time in Australia and for some time in America each year. 

Habitual residence

1. Under the Family Law (Child Abduction Convention) Regulations, Regulation 16(1A) states that a removal or retention of a child is wrongful if, among other things, ‘the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; or…’

2. Habitual residence requires physical presence for an appreciable period and a settled intention to reside habitually in that country.[2]  There can be only one habitual residence at a time[3] but there can be more than one habitual residence in a person’s life.  An example of this is living part of the year on one county and part of the year in another country.[4] 

   [2] Re J (a Minor) [1990] 2 AC 562 at pp 578-579; In the Marriage of McCall; State Central Authority (1995) FLC 92-551

   [3] Hanbury-Brown and Hanbury-Brown; Director General of Community Services (1996) FLC ¶92-671 at p 82,971; Commissioner, Western Australia Police v Dormann (1997) FLC ¶92-766 at p 84,430.

   [4] Re V (a Minor) [1995] 2 Fam LR (Eng) 992; Re A [1998] 1 Fam LR (Eng) 497 at p 505

3. The vital aspect of habitual residence is having a settled intention to acquire a new habitual residence.[5]  The intention to adopt habitual residence must be "acted on in a decisive way so as to provide a degree of certainty and continuity".[6]  

   [5] Kilah & Director-General, Department of Community Services (2008) FLC 93-373

   [6] Panayotides v Panayotides (1997) FLC 92-733 at p 83,897, quoted in DW and Director-General, Department of Child Safety (2006) FLC ¶93-255

4. Habitual residence can be lost, even in one day, where there is a settled intention to not return to that county.[7]  If the evidence of the mother was accepted, it was the case that as of 10 September 2006, when she travelled so as to give birth and raise the baby in Australia, she had a determined intention to not return to habitually reside in the USA.  She continued to live in Australia and make provision to raise her child here.  She asserts that her subsequent visits to the USA were not a resumption of habitual residence as her time there was to allow the father’s relatives to see the child and to finalise the sale of the house in the USA. 

   [7] HBH v Director-General, Dept of Child Safety (2006) 203 FLR 158

5. To acquire habitual residence, there must be presence and intention for an appreciable period.  This period has been held to require in some cases only a short time – one month has been held to be sufficient.[8]  It may be acquired ‘reasonably quickly’ but cannot be immediate.[9]  The wife has spent almost five months in the USA since September 2006.  That period was when the child was 3-8 months old.  The other 20 months of the child’s life have been spent in Australia.  At the time of the alleged wrongful retention on 7 December 2007, the child had spent 5 months in the USA and 8 months in Australia.  At the time of the retention the child was residing in Australia and had been since June 2007. 

   [8] Re F (a Minor) [1992] 1 Fam LR (Eng) 548

   [9] Re S (a Minor) [1998] AC 750 at pp 762-3

6. Up until separation, the mother and the child spent the first three months of his life in Australia; the following three months in USA. Upon the father’s notice to the mother of his intention to divorce, she prepared to return to Australia with the child.  Her evidence is that the father agreed to this and he had planned to arrange his work commitments so that he could work six months each year in Australia.  It is submitted that this three months in the USA was temporary rather than an alternative habitual residence and served the purpose of facilitating the move to Australia by concluding the sale of the house and giving the father’s relatives an opportunity to see the child before they returned to Australia. 

7. However, the father asserts that the agreed intention was that the mother would give birth to the child in Australia as she wanted to take advantage of her family being present and the health care system.  The agreement was that as soon as the child was able to travel, they would return to the USA.  This had been a point of contention between the parties since before they were married and the father asserts that the mother had promised that she would live in the USA, knowing that the father did not ever want to live elsewhere. 

Child’s habitual residence

1. According to the mother’s lawyer, ‘The primary position of the respondent is that the child was not habitually resident in the state of Massachusetts prior to his departure for Australia or after his retention.’[10]

   [10] Family Court of Australia Order dated 10 October 2008

1. A child’s habitual residence depends upon the habitual residence of the people that have custody of her or him. 

2. In the case of a parent having sole custody, the child’s habitual residence is the same as that of the sole parent. 

3. In the case of separated parents, the child’s habitual place of residence is usually the same as the person the child lives with. 

4. However in the case of parents having joint custody (where the parents are not separated), the child’s habitual residence is that of the couple.  One parent cannot unilaterally change the child’s habitual residence.  The child’s habitual residence can be changed by agreement, acquiescence or court order.  If none of those facts exist and one parent has unilaterally taken the child, then the child’s habitual residence remains that of the parent left behind in the couple’s place of residence.  

5. At the time of the child’s travel to Australia, the parties were still in a relationship.  Neither party asserts that they intended at that point to end their marriage.  The child’s habitual residence at birth was therefore that of the parents or as agreed by them.  This is a question of fact to be determined at trial. 

6. The evidence from the mother is that she had moved to Australia with an intention to settle before the child was born.  She also gives evidence that the parties were agreed on this decision.  It is possible that by the time of the child’s birth she had lost her habitual residence in the USA and gained it in Australia.  In that case, she either intended that this be the end of the relationship by her coming to Australia knowing the husband did not wish to do so or she believed he had agreed to it. 

7. Alternatively, the parents were agreed that the birth would occur in Australia but that the stay for that to occur was temporary only.  In that case, the mother’s settled intention may only have arisen when the father announced his intention to divorce.  At that point she planned to return to Australia.  If that is so, the retention is more likely to be wrongful, given that she had taken the child from the habitual residence after the father had commenced proceedings in the United States to determine the care of the child. 

8. If the parents were agreed that the child would be born and raised in Australia, the father’s intention may have subsequently changed.  However, if that occurs, the child does not then automatically become habitually resident in the father’s country upon the new intention being formed.[11]  That is to say, that intention alone is not sufficient.  The question of the child’s habitual residence remains a question of fact of physical presence and settled intention.  The case of Re M is illustrative of this point.  The child lived in India, with the agreement of the parents.  The mother then changed her mind and decided that the child should move to England and live there habitually.  At the point the matter came before the court, the child had not ever lived in England and was still present in India.  The mother’s intention, even if she was the sole parent, was not sufficient – physical presence was necessary and in that case, determinative.

   [11] See Re M [1996] 1 Fam LR (Eng) 887 at pp 895, 896

9. The interim court orders of 11 June 2007 noted that the mother and child would live part-time in Australia and return to the USA for the summer.  The interim orders also recognise that the father was intending to arrange his work so that he could spend ‘several months’ and reside part-time in Australia.  Her return trips do not, it is submitted, alter the child’s habitual residence. 

10. An English case, In Re A[12], is similar.  The parents were not living in the same country when the child was born as the mother wished to give birth in her home country to take advantage of the health system and having her family close.  The mother subsequently indicated her reservations about returning to Greece and the parents engaged in acrimonious discussions.  While they were not sure as to the future of their relationship, they agreed that they should have joint responsibility for the child and that the child would know both parents. They came to an agreement that the child would live with the mother in England and they would visit the father in Greece over the summer.  They foreshadowed in their agreement that the father would possibly visit the child in England if he could arrange his employment.  The mother took the child to Greece as agreed but left early after a violent incidence and took all of her possessions.  The father filed child abduction application.  The child’s habitual residence was held to be with the mother.  The agreement of the parties was significant as it was the substance of the common intention of the parties.  It was not a unilateral decision of the parties that the child would habitually reside in England.  Subsequent travel to visit the father as the purpose of the visit was significant.  The purpose was for the father’s family to spend time with the child and did not alter the fact of the habitual residence in the mother’s country.  

    [12] [1998] 1 Fam LR (Eng) 497

Analysis of the question of habitual residence

1. There is a crucial date required for the determination of habitual residence.  This is the date on which the child was wrongfully removed or wrongfully retained in Australia (relevantly in this case, assuming that the child was habitually resident somewhere else).

2. If the child were habitually resident in Australia prior to that date then the application by the Central Authority necessarily fails.  If the child were habitually resident in the United States of America (or more particularly Massachusetts) before the child’s removal to or retention in Australia then it is necessary for me to consider the other issues I have outlined above.

The argument for the child’s habitual residence in the United States

1. The submissions on behalf of the Central Authority included the proposition that the habitual residence of the parents should properly be regarded as the United States.  Prior to the birth of the child, the parents had a house and jobs in Massachusetts and that situation continued and had done so for some 10 years notwithstanding that the mother was an Australian citizen.  After his birth, when the mother returned to the United states, they still had a house in the United States and for a time, jobs in Massachusetts.  It was submitted that the parents had an habitual residence in the United states which had not been altered at the time that the mother returned to Australia and that the habitual residence of the child was therefore the habitual residence of the parents and this could only be altered in circumstances where (if the parents shared the ability to do so) both parents determined that there was a change in habitual residence.

2. The common facts are that the mother returned to Australia to give birth to the child by consent. The father travelled to Australia to witness the birth (although he arrived late) and the parents returned voluntarily to the United States after a period of three months.  The parties are not agreed about what transpired during the time in the United States, particularly about the intention of each of the parties about where each of them and the child would live in the future.  The mother asserts that there were agreements in place that would have permitted her to return to Australia.  The father does not accept that.  In any event, the mother was served with divorce papers and a motion to prevent her from leaving Massachusetts on 24 May 2007 and a response was filed in the Massachusetts Court.  On 11 June the Trial Court Probate and Family Law Department of the Commonwealth of Massachusetts made an order:

   
   “….1.  The parties shall comply with the terms of the signed stipulation of the parties filed June 11, 2007, which is filed with the Court and expressly made a part of this order

   ….”  The stipulation referred to appears in the application documents at page 104.  This provides that the parties “shall have joint legal custody of their minor child […]…..Physical custody of [the child] shall be primarily with the wife and shall be shared according to the parenting plan in paragraph 4 below…..”

3. Paragraph 4 of the stipulation provides as follows “The Parties acknowledge that [the child] and the Wife will live part of the year in Australia and part of the year in the US and the Husband will do the same once he is able to secure employment in Australia.  The husband plans to visit Australia in July 2007 for several weeks but agrees that the wife can move to Australia with [the child] prior to the husband’s July visit to Australia pursuant to the following parenting plan”.  There then followed some precise times during which the child would spend time with his father when the father was in Australia, including details of how he was to be picked up and delivered at the beginning and end of each period of “visitation”.

4. The parenting plan goes on to provide that on or about 10 June 2008 the child will return to Massachusetts for the period beginning 15 June until 31 August 2008.  The stipulation provided that when in Massachusetts, the child would live with his mother and his father would spend time with him on different weekends and at other times.

5. Paragraph 5 of the stipulation provides “because of the mother’s desire to reside part time with [the child] in Australia[13] the husband is attempting to negotiate with his current employer an arrangement that would allow him to live part of the year in Australia and part of the year in Massachusetts.  The parties anticipate that the husband will be travelling to Australia in July for several weeks and then travelling to Australia for several months as soon as his current job allows him or as soon as he is able to find other employment that will allow him to reside part time in Australia and part time in Massachusetts.”

   [13] My emphasis

6. Paragraph 6 provided material about the maintaining of family health insurance.  It concludes in hand writing as follows “when the wife resides in the US during summer 2008 the parties shall share equally the costs of the wife’s health insurance…..”.  The significance of the last phrase is “when the wife resides in the US during summer 2008.”

7. Paragraph 7 has added the words in hand writing “when in the US” to stipulations about other expenses.  The order affirming the stipulation provided (Order 2) that there would be a status conference of the matters before the Court scheduled for 18 September 2007 and provided “the mother is excused from attending the Status Conference if she is then in Australia.  The same courtesy would be extended to father if he was then in Australia.”

8. From an analysis of those facts alone which are non-contentious there can be no doubt that the initial removal of the child to Australia was not unlawful. It was not wrongful.  The stipulation is, in my opinion, ambiguous about what is to happen in the future but is more consistent with the proposition that the parties would spend some time in each year in Australia and some time in the US than with the proposition that the parties would remain permanently resident or habitually resident in the United States.  Without any other evidence however, it is inconclusive. 

9. The wording of the regulation 16(1A) is interesting.  The removal of the child from the United States, even if he were habitually resident in the United States at that point, was by consent.  The question is whether the phrase “habitually resided in a convention country immediately before the child’s…..retention in Australia” means that if the child were habitually resident in the United States before his temporary removal to Australia, that habitual residence continued during the period of the time he was living in Australia.  If at the time of each of the refusals or inability of the mother to return to the United States, the child was habitually resident in Australia, then the provisions of the Regulations do not apply.

10. Returning to the submissions made by the Central Authority about the habitual residence of the parents at the time of the child’s birth, I note that the parents say quite different things in their evidence about their intention.

11. The problem is that each of the parents may have at any time a different habitual residence.  The authorities demonstrate that it requires little time to acquire one provided there is a settled intent.  The particular problem relating to a minor child however, is that the minor child can only have a habitual residence of his parents and this would suggest that there needs to be (where the parents share parental rights in relation to the child) a common intent to change the habitual residence.  In my opinion, the common intent of the parents is only relevant when the parties are together and cannot be said to apply where each of the parents has a separate intent and potentially a separate habitual residence.  In circumstances where each of the parents has a different habitual residence and there is no determination about who should have the right to determine such habitual residence, it is arguable as a matter of logic that the child has no habitual residence at that point.

12. In this matter, the mother’s intention when she returned to Australia for the child’s birth may have been to return permanently and hence affects what his habitual residence may have been at the time of his birth.  This depends on which parent’s evidence I accept about the intent of each of the parties at the relevant time.  If for example I was to accept the mother’s evidence then the parties had made a decision that the child would grow up in Australia and hence the mother’s move there was in fact the establishment of a habitual residence in Australia.  In that case, even if I were to accept that the father did not so intend, it is reasonable to assert that each of the parents had a different habitual residence at that point and that accordingly the child was not habitually resident either in the United States or in Australia.  On that analysis, the Central Authority would have failed to have established a primary matter for the application of the regulations of the Convention and accordingly the application would fail. 

13. I note that there is Full Court authority for the proposition that where possible, I should make a positive determination as to where the child habitually resides, rather than find there is no habitual residence.[14]  This is so as not to defeat the purpose of the Convention by removing a child from its protection and leaving the child vulnerable to multiple abductions.  The distinction I make is that while it is possible that the child had no habitual residence at the point of his birth, when the parties were still married, I would not find that he presently has no habitual residence. This means that the child is still protected by the Convention.

    [14]  Cooper v Casey (1995) FLC ¶92-575 at pp 81,696; DW v Director-General, Department of Child Safety (2006) FLC ¶93-255 at pp 665-6

14. As a proposition of law (and logic), where the parties are separated, they have joint rights of custody and they have agreed about care arrangements for the child, the habitual residence of the child is that of the parent with whom the child lives.[15] 

    [15] Re A [1998] 1 FamLR (Eng) 497

15. For present purposes, the relevant time for assessing habitual residence is at the time of the retention.  At any of the dates of retention submitted by the Central Authority, the parties were separated and the child was living with and being cared for by the mother, as was agreed.  She lived in Australia and gave evidence of her intention to permanently do so, an intention the father was aware of over the course of their relationship.   

16. A supplementary determination about this matter revolves around the question of the proceedings before the Massachusetts court.  It is reasonably arguable that no matter what the intentions of the parties were, the father wanted the Massachusetts Court to determine where the child was to live.  Whether his application to the Court was, as the mother suggested, merely to ensure his ability to spend some time with the child or whether it was an assertion of the father’s requirement that the child live in the United States depends on a consideration of the evidence. 

17. Nevertheless, what is clear is that no final determination has been made and all of the orders of the Court analysed above are referable only to a continuation of the proceedings or to interim rights in relation to “visitation”.   It could well be that the father who would have had no reason to turn his mind to the technical question would not have wanted the habitual residence of the child to have been in some way physically or otherwise determined prior to the finalisation of court proceedings but it seems to me that the Court proceedings themselves do not affect the establishment or otherwise of habitual residence. 

18. It is natural that the father wanted the matter resolved in his home state and it is equally understandable the Court would have gone out of its way to assert its jurisdiction over the parties.  I do not regard the evidence from the retired Judge presented on behalf of the Respondent as being of relevance to whether or not the Court has jurisdiction to deal with the matter.  What is notable is that the Court, notwithstanding the apparent recalcitrance of the respondent, at no point made an order conferring single or sole custody on the father nor an order that the child return to live permanently in the United States.  The court in fact permitted the child to return to live in Australia pending further order.  That is in fact what occurred; the mother and child continued to live in Australia and did so lawfully as no Court required her to do otherwise. 

19. In those circumstances, in my opinion, it would be logical as a supplementary determination to find that the period during which the child was living in Australia was in effect contributing to the establishment of his habitual residence in Australia so that at the time of the alleged wrongful retentions, the child had lived for the majority of his life in Australia with his mother, who had a clear and unequivocal intention that he should remain living there permanently.

The evidence of the parties

1. If my determination set out above were to be wrong, it would be necessary to examine in more detail the evidence of each of the parents about their intentions as to where the child might habitually live.  In this matter, somewhat unusually in Hague Convention cases, an application was made for leave to cross-examine the mother and a reciprocal leave was granted in respect of the father.  His cross-examination was conducted by video conference. 

2. In the end, the evidence of each of the parties is contradictory.  If I were to accept the mother’s evidence, it is obvious that she intended at all times that she should live permanently in Australia with the child.  It was intended that she would visit the United States to enable the child to continue his relationship with his father and with his father’s family but it was never part of her intent that she would live after his birth in the United States.  Her evidence, additionally, asserts that this was the intention of the father as well - as conveyed to her at that point.  She was confirmed in her view of this when the father had applied to his employer to work remotely (from Australia) for six months of each year.  There were also discussions as to the father’s obtaining residency or citizenship status in Australia but nothing, in the end, eventuated.  She asserts that the stipulation in the interim orders were presented to her at the last moment (as indeed they were) and on the basis that the father simply wanted to ensure that he had rights to spend time with the child.

3. The father’s evidence was that it was never part of his settled intention that the child would live permanently in Australia; he would prefer that he live permanently in America. 

1. The matters that the father advanced included the fact that when the mother returned to the United States she continued in employment for a time and further that although the parties were selling their family home, they intended to buy another.  E-mails were presented to the Court which, it was asserted, maintained that the mother was not as she said seeking an investment house which they would occupy on a period of return to the United States but rather seeking a new home for herself and the child and the father.  He also indicates that the mother had gone to some lengths to ensure that the child was granted American citizenship.  I do not accept that the e-mails provide conclusive evidence about the state of mind of the parties especially the mother at that time.  I regard them as ambiguous.

2. Having had the advantage of looking at the parties and listening to them I prefer the evidence of the mother over the evidence of the father. 

3. If, for whatever reason that determination should be incorrect, I would be left with a situation which I warned the parties about at the commencement of the proceedings that the direct and conflicting evidence of the parents would leave me with an inability to make any determination about it.  I could not on the evidence make a determination in accordance with the evidence of the father.  Accordingly, in my opinion, there is no basis upon which I could find that the habitual residence of the child was in the United States of America at any of the relevant times referred to.  On that basis, the Central Authority would fail to meet its burden of proof and the application would fail. 

Rights of Custody

1. Although it was argued (I think somewhat faintly) by the mother that the father did not have rights of custody, it seems to me that if the child had been habitually resident in the United States, the orders of the Court would have provided that the father did have rights of custody.  The order says so in plain terms and that includes, and I accept, the right to have a say in where the child lives.

2. Nevertheless, the issue is irrelevant if the child is not habitually resident in Australia. 

3. I would find also that the father took all reasonable steps to exercise those rights of custody if they were relevantly to be exercised.

Conclusion

1. However, for the reasons I have set out above I am satisfied that the child was habitually resident in Australia at the time of the alleged wrongful removals and retentions and accordingly the application by the Central Authority is dismissed.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date: