State Central Authority and Barnes (No 3)

[2014] FamCA 1099

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BARNES (NO. 3) [2014] FamCA 1099

FAMILY LAW – CHILD ABDUCTION – Hague convention – Contested habitual residence argument – Parents move to Canada prior to the birth of the child for the purposes of the father completing his qualifications with the intention of returning to Australia – Breakdown after the birth of a child – Decision to alter intention contemplated – Application for return refused.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

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

Cooper v Casey (1995) FLC 92-575
De L v Director General, NSW Department of Community of Services & Anor (1996) FLC 92-706
Department of Communities, Child Safety and Disability Services & Lasko (No 2) [2012] FamCA 941
Harris & Harris (2010) FLC 93-454
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40 Punter v Secretary for Justice [2007] 1 NZLR 40
Panayotides v Panayotides (1997) FLC 92-733
Punter v Secretary for Justice [2007] 1 NZLR 40
Re: B (Minors) (Abduction) (No 2) [1993] 1 FLR 993
State Central Authority v McCall (1995) FLC 92-552
State Central Authority & Wattey [2008] FamCA 1108
Zenel v Haddow [1993] S.L. T 975
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

APPLICANT: State Central Authority

RESPONDENT: Ms Barnes

FILE NUMBER: MLC 4917 of 2014

DATE DELIVERED: 5 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

SOLICITOR FOR THE APPLICANT: State Central Authority

COUNSEL FOR THE RESPONDENT: Mr Testart

SOLICITOR FOR THE RESPONDENT: Testart Family Lawyers

Orders

1. That the application filed by the State Central Authority is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Barnes 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 MELBOURNE

FILE NUMBER: MLC 4917  of 2014

State Central Authority; Department Of Human Services 

Applicant

And

Ms Barnes

Respondent

REASONS FOR JUDGMENT

1. On 5 June 2014, the Secretary to the Department of Human Services representing the Responsible Central Authority (“the State Central Authority”) filed an application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking an order for the return of the child X (“the child”) born in 2013 to Canada.

2. The parent requesting the intervention of the State Central Authority is Mr J who lives in Canada and is the child’s father (“the father”). The application is opposed by the child’s mother, Ms Barnes (“the mother”). Collectively, I shall call Mr J and Ms Barnes “the parents”.

3. The Regulations concern Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction, which I shall refer to for convenience as the Hague Convention.  The dispute here was of narrow compass.

4. The State Central Authority and the mother largely agreed about the way in which the case was to proceed. That is:

   ·    The application has been made under sub-regulation 14(1) for an order for the return of the child under reg 16(1)(a);

   ·    The child is under sixteen years of age (reg 16(1A)(a));

   ·    The application is made within one year of the alleged retention (reg 16(1)(b)); and

   ·    Canada is a Convention Country (reg 16(1A)(b)). 

5. The three issues which I must determine are:

   (a)was the child habitually resident in Canada at the time of her removal by her mother?

   (b)if the child was found to have been habitually resident in Canada, is there a grave risk of the type of harm referred to in the Regulations to the child if she were ordered to be returned there?

   (c)if the grave risk exception was made out, should the Court exercise its discretion to decline to have the child returned to Canada?

6. The uncontroversial relationship background of the parents of the child gives some context to the disputed issues. The parents met when the mother was travelling in Canada in 2010. They decided to come to Australia where they initially lived in Western Australia and then undertook contract work. They were committed to each other such that they bought a new car under finance arrangements. They moved to Queensland for other contract work which they did together and then to Melbourne where the mother’s parents lived.

7. The father concluded that he could not transfer his trade qualifications from Canada to Australia so a joint decision was made to work in Western Australia to save sufficient funds to return to Canada to enable him to finish his apprenticeship. That pathway led to the parents returning to Canada in July 2012. They remained in Canada and I accept, on the mother’s version, unintentionally she became pregnant. The child was born in late 2013 and the personal relationship of the parents faltered months later. In April 2014, the mother and the child came to Australia contrary to the wishes of the father and indeed, at the same time as family law proceedings had been commenced in Canada.

8. It is important to note that the proceedings were conducted on the submissions of the parties with particular reference to the affidavit material. The father remained in Canada but, at the request of the State Central Authority, was present through a video link. The father’s position was set out in the affidavit drawn for him.

9. There are obvious difficulties dealing with an application where there are contentious facts and where the evidence is not fully tested (see De L v Director General, NSW Department of Community of Services & Anor (1996) FLC 92-706; Harris & Harris (2010) FLC 93-454). Inferences are to be drawn and findings to be made where possible.

10. Here, there was prior agreement that there would be no cross-examination.

11. In Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472, the Full Court referred to cases which considered the potential consequences of not allowing cross-examination (see paragraphs 88-90). Reference was made to the Court of its own initiative requiring the evidence to be tested. Having read all of the evidence and because of the narrow compass of dispute here, I am of the view that cross-examination would not have made a significant difference because although the facts were contentious, the interpretation of their significance within the requirements of the law is what this case is all about.

12. Counsel for the mother submitted that if the mother’s evidence could not be rejected on the basis of incredibility or improbability, it ought to be accepted.  The same submission ought to also apply to the father’s evidence.

13. The onus of proof lies with the applicant and the standard of proof is the balance of probabilities as provided by s 140(1) of the Evidence Act 1995 (Cth).

14. The critical threshold issue here is habitual residence where the parents of the child have now professed distinctly differing views. From the perspective of the State Central Authority, the child’s habitual residence should be determined on the facts surrounding the period prior to her leaving Canada. From the mother’s perspective, the habitual residence issue should be determined on the basis of the whole period preceding the child’s departure but in light of the parents’ ultimate goal of always intending to live in Australia once the father’s qualifications had been completed.

15. If the Court is satisfied that the child was habitually resident in Canada as at April 2014 where the father was exercising rights of custody and none of the so called “defences” apply, the return to Canada should be ordered.

16. The facts need careful consideration in light of the authorities to which I now turn.

17. One parent cannot unilaterally determine their child’s habitual residence (see State Central Authority v McCall (1995) FLC 92-552 and Panayotides v Panayotides (1997) FLC 92-733). That said, once an intention to adopt a habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, a court is able to find that a habitual residence has been changed from that point (see Cooper v Casey (1995) FLC 92-575).

18. In LK v Director-General, Department of Community Services (2009) 237 CLR 582, the High Court examined habitual residence. The High Court said that a person could be found to be habitually resident in more than one place at the one time but that did not mean that the person must always be so connected with one place. The High Court held that when considering where children are habitually resident:

    34.      […] 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.

19. The High Court also said that the question of habitual residence falls for decision “in a very wide range of circumstances”. The majority said:

    22.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.

20. Along with the wide variety of circumstances giving rise to a residence which is said to be habitual, their Honours said that:

    23.[…] 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.

21. As their Honours went on to say, it was important to consider the context in which the enquiry was required, that was, the Convention the purpose of which was to facilitate resolution of disputes between parents in one forum, being that of the child’s country of habitual residence.  But in that context, the majority referred with approval to Punter v Secretary for Justice [2007] 1 NZLR 40 where the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O'Regan JJ) included the following at pages 61-62:

    Such [a broad factual] 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[.]

22. Absent the evidence being tested, the approach that should be taken was that adopted in Department of Communities, Child Safety and Disability Services & Lasko (No 2) [2012] FamCA 941 by Forrest J where he considered what weight should be given to the parties’ professed intention to be habitually resident or merely transient in one country or otherwise. His Honour concluded that where the subjective intentions of the parties were in dispute, the authorities indicated an objective approach must be taken, citing with approval at paragraph 53 the statement of Lord Marnoch in Zenel v Haddow [1993] S.L. T 975 at 979:

    […] while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.

23. There is no dispute here that the parties intended to return to Australia when the father’s qualifications were completed.

24. In his affidavit, the father said they agreed that the mother would apply for a permanent residency status in Canada but that was on the basis that she could then obtain a Canadian passport and return to live in Canada in the event they decided to do so in the future. In any event, the mother never made the application. Nothing therefore turns on that point because the parties had formed no intention to live in Canada in the future.

25. It was submitted by the father that the evidence of the joint leasing of an apartment in Canada and the mother’s employment were indicia of a settled purpose. I reject that because they are equally consistent with a partner biding her time. The more important question is what the joint intention was and not just in the immediate short term. The mother could have chosen to remain in Australia whilst the qualifications were pursued but she did not do so preferring to be with the father. She had to live somewhere and had to support herself. I accept she went to Canada to support her partner.

26. The parents subsequently moved to the residence of the father’s parents to provide assistance to the mother in respect of the child. That too can be seen as consistent with the mother biding her time rather than with settling down. There is nothing inherently improbable about the mother’s evidence that this was a temporary (and in her view ultimately unsuccessful) move to Canada.

27. The more important evidence comes from the parents’ joint statements to the Australian government. The father had applied for an Australian Visa. He communicated with the relevant Australian government department. The mother was his sponsor. The handwritten document attached to the visa application was said to be that of the father. It was not denied to be so by the State Central Authority. It clearly showed the intention was to come to Australia to live as a family and for the father to be the financial provider for the anticipated family. The father’s expressions were made in light of the mother’s pregnancy.

28. In his affidavit, the father acknowledged this joint intention but then said:

    I changed my mind when our relationship deteriorated.

29. In November 2013, that is, after the child’s birth, the relevant Australian government department would have understood that the family was intending to come to Australia. One month later, the parents were expressing a desire to come back to Australia and the relevant Australian government department acknowledged that intention requesting to be advised of any change. The father’s sworn evidence about a change of mind does not refer to those two facts. 

30. There are two reasons for me to reject the father’s evidence about his change of intention to move to Australia. First, when the parents experienced difficulties in their relationship, they attended couples counselling. That was in February 2014. That does not suggest a determination to end the relationship and not continue with the plans then extant. There were clearly problems in the relationship at that time because, although those problems seemed to have been denied by the father, by at least March 2014 (and in the mother’s view much earlier) she had gone to Vancouver Police to report an argument. What is interesting about that report is that the mother told the Vancouver Police that she was staying in Vancouver on a “working/holiday visa that expires in June 2014”.

31. The second reason to reject the father’s evidence about a change of mind is that when the Australian government department wrote to the father in March 2014 concerning a requirement to undergo medical assessments, he agreed. That is not consistent with not only pursuing a relationship with the mother but also continuing plans to move to Australia.

32. Only weeks later in April 2014, the mother left Canada with the child and upon her arrival in Australia, she withdrew her sponsorship of the father. The father then withdrew his visa application on 5 May 2014. Nothing much turns on that because, as the mother was endeavouring to fly to Australia in April 2014, the father commenced Canadian court proceedings. I have little doubt the inference should be drawn that he had other things on his mind than the visa application but I find that at least by the end of March 2014, there was no question about the long term intention of both parents to come to Australia.

33. As the above authorities show, attention cannot be confined to the intentions of the mother in her role as the day to day care of the child.  It is necessary to consider what each parent intends for the child. I find that the parents jointly intended that the child would live in Australia and move there as soon as the father’s qualifications were completed with visa approval and that such a move was not far away.

34. As part of this broad inquiry into habitual residence, the authorities suggest that the Court should also consider the settled purpose of the parents. It was the submission of the State Central Authority that the Court should look at what was happening around the immediate departure from Canada rather than the longer term aspirational plan. It was submitted that even if there was a longer term goal, it did not alter the fact that there was a settled purpose to reside in Canada “for the time being”. Counsel referred to “settled purpose” in LK (supra) where the High Court approved the statement of Waite J in Re: B (Minors) (Abduction) (No 2) [1993] 1 FLR 993:

    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.

35. There was nothing settled about these parents in respect of living arrangements. I have inferred there was an element of pragmatism about what they were doing driven by the father’s need to be nearby his place of study and the mother’s need for assistance with a newborn child. Between November 2013 and February 2014, the parents lived in the home of the paternal grandparents. It is not necessary for me to make any findings about whether or not that was successful or established. The paternal grandmother’s evidence by affidavit to which photographs of the child’s bedding and bedroom were attached were of little assistance. It was obvious that this arrangement was intended to be some sort of separate household from the grandparents but under the one roof. It was described that the child was living with the parents in the basement and at times, the mother joined in the household of the grandparents. All of that came to an end in February 2014 and the mother moved into a “shelter”. The relationship between the mother and father continued albeit tenuously but they then found some short term accommodation together.

36. In the short term accommodation, the mother said both she and the father told the landlady they would be returning to Australia in July as soon as the father’s working visa arrived. This conversation was said to have occurred either at the end of February or early March 2014. In his affidavit, the father denied speaking to the landlady about such a move but he did agree that they signed the lease until July. On the balance of probabilities, I find that there was a joint anticipation that within a few months, the parents were coming to Australia to live. That time is also consistent with the evidence of the communication with the Australian Government department about the visa. Thus, I find that there was nothing settled about the parents’ life (and hence that of the child) around the period of time before the mother left Canada other than that they were coming to permanently live in Australia.

1. The authorities relating to habitual residence also suggest the Court should look at the issue of continuity of residence and lifestyle to give some indication of what was the habit. That concept of continuity means something more than transient. The life of the child was regulated and controlled by her mother and she was clearly in a transient state awaiting to return to Australia but so was the father. There was nothing continuous about her stay in Canada and as at March 2014, the father too was in a holding pattern waiting for the visa. Their actual stay in Canada as a whole, was longer than intended, but that was because the father’s course took longer than expected.

2. Another aspect of the inquiry concerns the strength of ties of the child to Canada as well as to Australia. The child was very much affected by her mother’s determination but having regard to my finding about the expressed intention of both parents as indicated by the visa application, I find the child’s ties can be seen as Australian.

3. In the written submissions of the State Central Authority, it was said that the original plan had been to stay 12 months but it turned out to be double that. The submission then said:

   The mother claims that she stayed longer out of necessity as the father’s qualification took longer to obtain than originally thought, and because the mother fell pregnant and could not return to Australia. In regards to the latter, it is noted that the mother did not attempt to leave the country until about 6 months after the child was born. It is unclear if the father completed his apprenticeship requirements at the time the mother left, but it appears unlikely given the estimate provided by the mother that this was to occur in about July 2014.

4. To the extent that the statement above was intended to encapsulate the facts here, I reject it. As the authorities earlier mentioned discuss, the past and present intentions of the person under consideration are relevant. The mother’s evidence about the conversation with the landlady was disputed by the father but he did not dispute that they were waiting for the visa. There was no suggestion of an incomplete apprenticeship or qualification. The father’s own communication with the relevant Australian government department on 20 March 2014 and the joint move into the residence with the lease taken until July 2014 strongly suggests that the joint intention was to come back to Australia as a family.

5. The submissions of the State Central Authority also said that all of the indicia such as the mother obtaining the Canadian visa, receiving maternity benefits, attending couples’ counselling and the obtaining of the apartment were evidence of an assimilation into Canadian life. Even if that were so, they are but indicia. If there is as here, an intention which is fundamentally clear, other indicia do not assist.

6. I accept that the parents were in Canada for a limited purpose and the delay in that purpose being completed does not alter its fact. It is to be remembered that this is a broad factual inquiry about the reality of the connection between the child and the particular state.

7. Having regard to all of the evidence, Canada was a transitional step to return to Australia which objective had never been abandoned even if it had been delayed. I find there was an underlying intention of the child’s parents that she would live in Australia.  There was no settled purpose in the sense of some habitual arrangement in Canada.

8. In discussion with counsel in the hearing, reference was made to the possibility of there being no habitual residence where there is ambiguity (see State Central Authority & Wattey [2008] FamCA 1108) but that is hardly the situation here. I find the parental intention unambiguous right up until the time that the mother left Canada.

9. As the State Central Authority as applicant bears the burden of proof to establish habitual residence was in Canada and has failed to do so, the application itself must fail.

10. Even if I am wrong about that, there is the second question of whether the mother has one of the recognised “defences” under the Regulations. In this case, she submitted that there is a grave risk that if ordered to be returned to Canada, the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation (reg 16(3)(b). The mother bears the onus of establishing the grave risk.

11. The basis of the grave risk defence here was said to be:

    ·The mother suffers from depression and if she went back with the child, her mental health would deteriorate such that she would require hospitalisation and that as a consequence, the child would face serious deleterious effects;

    ·The mother would be returning to a hostile and dangerous environment because the father approached a news program which might run the story and name the mother and child;

    ·There was family violence; and

    ·The father lacks insight into the care needed for the child.

12. The evidence to support the first of those contentions was found in the affidavit of psychiatrist Dr K. Dr K was not required for cross-examination but it was submitted by the State Central Authority that limited weight should be given to his evidence because no foundation for it had been set out in the affidavit. In addition, it was submitted, there are medical facilities in Canada and to the extent necessary, the father could care for the child. Technically there is some merit in all of those submissions of the State Central Authority but they too suffer the same “weight” problem. Indeed, they suffer from a lack of common sense.

13. The child is very young and vulnerable. I can take judicial notice of the views of experts who frequently give evidence in this Court about the developments, dependency and attachment of very young children. Whilst Dr K did not justify his opinion as to why the child would suffer if the mother became ill, common sense dictates that a very vulnerable and dependent child attached to her would find the absence and illness confusing if not distressing. The absence of the call for the cross-examination of Dr K convinces me that the State Central Authority did not really disagree with his views.

14. Furthermore, the father has seen the child under supervision twice in Australia. It was suggested by the State Central Authority that he could parent the child but the evidence presented from the supervisor noted obliquely that the mother was required to settle the child in the father’s care. The child is still breastfed and whilst there is some question in the evidence of the supervisor as to why the mother was present at all, nothing indicated how the child would have been settled or fed if the mother had not been present. Indications also appear in the supervisor’s evidence that the father was able to get a smile out of the child by tickling her feet. Not much can be drawn from that. The absence of evidence as to how the father would have the capacity to care for the child was not found there.

15. The evidence of Dr K was that the mother would have a psychiatric event and whether or not Canada had the requisite treatment was not to the point. The fracturing of the relationship between mother and child must be seen to be likely to have psychological consequences.

16. Regulation 16(3)(b) refers to the grave risk that the consequence will arise. The evidence of Dr K is unchallenged that it will. The consequence of the impact on the child where there is limited attachment for her with her family and any other members of the family ought to almost be self-evident. How long that illness would go on for is not a matter that I can speculate about because the evidence does not say but I am conscious that to a very large degree this is a forum issue and if the mother returned to Canada, there would then be proceedings about the sharing of time and responsibility of the child. How a psychiatric event of the mother would impact on the court proceedings was also unsaid but it was not suggested to me that the father’s position was that the mother should be removed from the child’s life. Thus, a psychiatric event would have psychological consequences for the child but I am unable to say for how long and how significant they would be. The Court’s function is to assess the risk of that event occurring rather than to say the psychological consequences will be grave. I am satisfied that such an event would occur.

17. The other matters raised by the mother’s solicitor about the dangerous and hostile environment do not have any merit. The television program accepted that it should not run the program when apprised of the details of the case. The mother’s concern is that it might happen. No doubt if the matter was returned to Canada, she might make an application for appropriate injunctive relief.

18. The apparent hostile family environment is also without merit. It is hardly surprising that a family will support a loved-one. The sad fact here is that the paternal grandparents have not had the opportunity to develop any relationship with their granddaughter of late. Nothing I heard indicated they would prejudice the interests of the child even if they had a poor opinion of the mother.

19. The family violence submission is a matter about which I can make no finding. The allegations were denied and the mother’s reliance upon a police report about an argument (as distinct from an assault) did not take the matter much further. Her joint effort with the father in renting the property in February/March 2014 for the months until July and her professed support of the father’s application for the visa until she withdrew her sponsorship, all fly in the face of a person who has grave fears for her safety. I do not make any findings therefore about that issue.

20. In the circumstances, the evidence of Dr K satisfies me that the defence is made out.

21. The Court still has to decide whether to exercise the discretion in the mother’s favour. Here, because of the attachment of the child to her mother which seems to have been the intended relationship irrespective of the mother’s flight to Australia, I consider a Court in Canada would be concerned to restrain her there without support. Whilst the father offered financial support, the mother’s response was that it would barely cover rent. Those sorts of matters would give rise to a question of whether the best interests of the child might be better served where she has significantly more support.

22. The State Central Authority submitted that if there was no order for return, the philosophy of the Hague Convention would be frustrated. That philosophy is about permitting the child’s habitual residence to determine the forum for the determination of the child and parenting welfare and development principles. There did not seem to me to be any indication that the father was seeking that the child live with him. In his August affidavit, the father said that if the child was returned to Canada, he would see that she was looked after and had everything she needed. He later said he did not want to “lose” the child. He set out in detail what facilities were available in Canada and I have no doubt he was truthful but he ended his affidavit with the statement that he would find accommodation for the mother and the child close by to him. That was in the context of his application to the Canadian Court that he be granted interim guardianship and custody of the child along with injunctions precluding the child’s removal from Canada. The inference I have drawn is that his ultimate application was to spend time with the child with the mother continuing her primary role. He said that the mother could make an application for relocation to Australia. When those statements were made, the father had not seen the evidence of Dr K. I do not know what his current position may be but his evidence indicated that he wanted the mother in the child’s life.

23. I am satisfied that the discretion favours the mother for two reasons. First, if the father’s desire is to be a part of the child’s life but also for the mother to continue her role in a significant way, those proceedings can be brought here. The Hague Convention would therefore not be thwarted. Secondly, there is a grave risk of harm because of the evidence of Dr K.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 December 2014.

Associate: 

Date:  5 December 2014