State Central Authority and Camden (No 2)
[2011] FamCA 666
•12 August 2011
FAMILY COURT OF AUSTRALIA
STATE CENTRAL AUTHORITY & CAMDEN (NO 2) [2011] FamCA 666
FAMILY LAW – CHILD ABDUCTION – procedure – benefits of mediation - exceptional circumstances warranting appointment of an independent children’s lawyer - alleged wrongful retention – children not habitually resident in the United Kingdom in spite of joint intention of parents to reside there – finding that the children had not become sufficiently integrated into life in their new state of residence to be regarded as habitually resident – judicial task as described in Zotkiewick’s case very helpful – grave risk of harm considered – consent considered - discretion against mandatory return considered – application dismissed
APPLICANT: State Central Authority
RESPONDENT: Ms Camden
INDEPENDENT CHILDREN’S LAWYER: Ms N Watts
FILE NUMBER: MLC 5776 Of 2011
DATE DELIVERED: 12 August 2011
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Bennett J
HEARING DATE: 1, 2, 3 and 4 August 2011 REPRESENTATION
COUNSEL FOR THE APPLICANT: Ms T Porritt
SOLICITOR FOR THE APPLICANT: Department of Human Services, Legal Services Branch
COUNSEL FOR THE RESPONDENT: Ms M Baczynski
SOLICITOR FOR THE RESPONDENT: Denise A Dwyer Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms L Colla
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee Orders
IT IS ORDERED THAT:
1.The application of the State Central Authority filed on 30 June 2011 be and is hereby dismissed.
2.The respondent mother, Ms Camden, be and is hereby at liberty to collect from the Registry Manager any passports of the children T born … December 2007 and J born … April 2009 currently held for safekeeping by this Registry of the Court.
3.In the event that a further parenting application is filed on or before 30 August 2013 the parties, or the requesting parent, Mr Camden, is at liberty to have the matter listed before me for directions in the event that I am reasonably available. This order does not, however, preclude any other judicial officer from hearing the matter.
4.IT IS REQUESTED that the Australia Federal Police remove the names of the children T born … December 2007 and J born … April 2009 from the Airport Watch List at all points of international arrivals and departures in Australia.
5.The respondent mother, Ms Camden, be and is hereby at liberty to collect from the independent children’s lawyer any British passports of the children T born … December 2007 and J born … April 2009 currently held for safekeeping by the independent children’s lawyer.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority and Camden (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT MELBOURNE FILE NUMBER: MLC 5776 of 2011
State Central Authority Applicant
And
Ms Camden Respondent
And
Independent Children’s Lawyer REASONS FOR JUDGMENT
Introduction
1.By application filed 30 June 2011 the State Central Authority seeks the return to the United Kingdom (“United Kingdom”) of the children T born in December 2007 and J born in April 2009, pursuant to r 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Regulations’). I heard the trial on 1, 2, 3 and 4 August 2011 and reserved my decision. Mindful of imperatives of time and arrangements that the parents had for leased premises in Town E in the United Kingdom, I pronounced orders of 12 August and said that I would deliver my reasons later. These are those reasons.
2.The Regulations import into Australian law the provisions of the Convention on the Civil Aspects of International Child Abduction, which was concluded at The Hague on 25 October 1980 (‘the 1980 Convention’).The purpose of the 1980 Convention is to provide that children who are wrongfully removed to, or retained in, Australia are returned to the Convention country in which they were habitually resident immediately prior to the wrongful removal or retention, so that appropriate arrangements can be made for the children within the legal and social framework of that country.
3.The applicant is the State Central Authority (“SCA”). Mr Camden is the children’s father, at whose behest the application is made. The respondent, Ms Camden, is the mother of the children.
4.It is the SCA’s case that the mother removed the children from the United Kingdom without the consent or knowledge of the father on Thursday 12 May 2011, that the removal was “wrongful” within the meaning of the Regulations and that the children have been wrongfully retained in Australia since. The SCA seeks the prompt return of T and J to the United Kingdom so that appropriate parenting arrangements can be made there.
5.The mother filed an answer and a cross application on 14 July 2011 in which she sought parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The applications were misconceived, as between herself and the SCA, and were subsequently dismissed without any hearing on the merits. On 26 July 2011 the mother filed an answer to the application of the SCA in which she seeks that the application be dismissed. The mother resists the return of the children (or either of them) to the United Kingdom and she contends that:-
·The children were not habitually resident in the UNITED KINGDOM immediately prior to 12 May 2011 and, therefore, the retention is not wrongful within the meaning of the Regulations;
·If the retention is found to be wrongful, the husband had consented to the removal of the children from the United Kingdom within the meaning of Regulation 16(3)(a)(ii); and that the discretion which arises by virtue of the exception being made out ought to be exercised in favour of the children not being returned to the United Kingdom notwithstanding that it is their place of habitual residence; and
·If the retention is found to be wrongful, there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of reg 16(3)(b); and that the discretion which arises by virtue of the exception being made out ought to be exercised in favour of the children not being returned to the United Kingdom notwithstanding that it is their place of habitual residence.
6.There were no issues as to the other constituent elements of the alleged wrongful removal being that:-
·The children are under 16 years of age (reg 16(1A)(a));
·The father had rights of custody under the laws of the United Kingdom (reg 16(1A)(c));
·The removal was in breach of the rights of custody (reg 16(1A)(d)); and
·At the time of the removal on the 12 May 2011, the father was actually exercising his rights of custody (reg 16(1A)(e)).
7.If the SCA cannot establish that the children were habitually resident in the United Kingdom immediately prior to the mother’s retention of them in Australia, the removal cannot be considered to be wrongful, the Regulations would not be engaged and the application of the SCA must fail. The involvement of the SCA would then cease and the parents would be at liberty to seek relief against each other pursuant to family law legislation in either the United Kingdom or Australia, although common sense would dictate that relief be sought in the country in which the children are situated.
8.If the court finds that the retention was wrongful and neither of the exceptions to mandatory return apply, the court is required to order the return of the children to the United Kingdom.
9.If the court finds that the retention was wrongful but that either or both of the exceptions apply, the court has a discretion to refuse the return of the children. In this regard, the SCA contends that I should decline to exercise the discretion and return the children to the United Kingdom. The mother contends that the court should exercise the discretion in favour of the children not being returned to the United Kingdom notwithstanding that it is their place of habitual residence.
Evidence and the conduct of the proceedings
10.This matter was first before the Court on 30 June 2011. Orders were made ex parte to secure the whereabouts of the children. In that regard it was directed that the mother be served and the proceedings were adjourned to 11 July 2011. Victoria Legal Aid was requested to appoint an independent children’s lawyer. My reasons for decision that day have been published as [2011] FamCA 599 and I incorporate those reasons into this judgment.
11.On 11 July 2011, I suggested to the parties that they consider what, if any information or documents or things would be required from the United Kingdom. Also, what witnesses may have to be cross-examined by video link from the United Kingdom. It was made clear to the parties that cross-examination would be limited to relevant issues but that it could and would proceed without cost to the parties and with reasonable allowance for the difference in time zones.
12.I also asked the parties to consider mediation or conciliation and, specifically, that the applicant SCA raise mediation of the entire family dispute with the father through the appropriate channels of communication. Unlike the 1996 Convention[1], mediation is not mandatory in matters arising under the 1980 Convention and/or the Regulations. Nonetheless, in my view it would have been to the benefit of the parents and the children to mediate or conciliate not only the issues that arise under this application for immediate return but also the future parenting arrangements, including where and with whom the children will live and how frequently and under what conditions they will spend time and communicate with whom they do not reside.
[1] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996.
13.It was subsequently confirmed that the parents were both willing to enter into meditation.
14.In the course of preparing for the hearing, including making arrangements for evidence by video link from the United Kingdom, the SCA informed the court that the father would travel to Melbourne to give evidence. That was solely his decision. The earliest indications were that the father was not seeking to spend much time with the children. I was concerned that there may have been some miscommunication and ordered that the parents attend upon Ms W, Family Consultant, on the day after the father’s scheduled arrival to discuss what time T and J would spend with the father. The issue of the children’s time with the father was resolved between the parties, although the mother subsequently withdrew her agreement that the children spend the following Saturday night with the father.
15.I indicated to the parties that the court would do all it could to facilitate that mediation or conciliation as a parallel process to these proceedings, providing that the final determination was not delayed. This would be for the purpose of conciliating all parenting issues, not only those pertaining to the 1980 Convention. Previously, the parties to Hague proceedings before me have been fortunate to have mediation services provided, on little notice, free of charge and with a very experienced conciliator, through M Mediators. Unfortunately, that could not be achieved in this case. Upon being so notified, I required the SCA to make enquiries about its telephone dispute resolution service even though both parents were in Melbourne. On 20 July 2011 the court was informed that there was a delay of two or so months in the allocation of any telephone dispute resolution service. Yet, by correspondence dated 26 July 2011, the solicitor for the SCA notified all parties and the court that telephone mediation could take place on the Friday or Saturday prior to the commencement of the trial. So on the Friday prior to the commencement of the trial, the parents had a two hour mediation session, over the telephone, with a mediator who was located interstate. The matter did not resolve.
16.On 11 July 2011, it had been specified by the mother’s representative that the only grounds for the mother’s opposition to the SCA’s application would be that the children were not habitually resident in the United Kingdom and/or the father had consented to the children being removed to Australia. The mother’s outline of case was required to be filed by Thursday 28 July 2011. She did not file that document as required. On the first day of the hearing, 1 August 2011, counsel for the mother provided an outline in which grave risk of harm to the children and exposure of the children to an intolerable situation, within the meaning of Regulation 16(3)(b), was described as a further basis for her opposition to return. Ultimately, counsel for the mother also sought to adduce further evidence from the mother as to the alleged harm or intolerable situation. This was despite having filed three affidavits (affirmed on 7, 14 and 29 July 2011 respectively). I directed that any evidence pertaining to reg 16(3)(b) which was additional to the evidence already filed by the mother be prepared as a proof of evidence and, eventually, that was done. I note the Counsel for the applicant SCA objected to the mother relying on a further ground but conceded that any prejudice to the SCA’s case could not be identified until the Court had received the evidence contained in the proof. The objection was not renewed.
17.On the first day of the hearing, counsel for the mother also made an application to discharge the Independent Children’s Lawyer (“the ICL”) on the basis. She called for the reasons for decision for the first appearance at which the request was made for the appointment of the ICL. Those reasons were published under the case neutral citation [2011] FamCA 599, and were released within the hour. I did not accede to the mother’s application to discharge the ICL.
18.The SCA relied on the following documents:
·Form 2 application for commencement of proceedings under the Regulations, which includes a statement by the father and authorisation for the SCA to act on the father’s behalf, dated and filed 30 June 2011.
·Affidavit of Michelle Sarah Wilson, solicitor for the SCA, sworn 22 July 2011 and filed 22 July 2011, attaching an affidavit received from the requesting father dated 21 July 2011 in response to the mother’s material;
·Affidavit of Mr I sworn 21 July 2011; and
·Affidavit of Ms N sworn 21 July 2011.
19.The mother relied on the following documents:
·Form 2A answer filed 27 July 2011;
·Her affidavit affirmed 7 July 2011;
·Her affidavit affirmed 14 July 2011;
·Her affidavit affirmed 29 July 2011;
·A proof of evidence pertaining to the grave risk of harm exception[2];
·Affidavit of Ms Y affirmed 27 July 2011 and filed 1 August 2011;
·Affidavit of Ms J affirmed 15 July 2011;
·Affidavit of Mr B affirmed 13 July 2011;
·Affidavit of Mr Z affirmed 14 July 2011;
·Affidavit of Ms M affirmed 13 July 2011;
·Affidavit of Mr M affirmed 13 July 2011; and
·Affidavit of Mr J sworn 14 July 2011.
[2] Exhibit “M2”.
20.There were various exhibits which were admitted into evidence by the consent of all parties. The final exhibit, “ICL2”, was received into evidence after the hearing pursuant to an agreement between the parties. It includes an email from the Entry Clearance Manager from the British High Commission in Canberra dated 5 August 2011 about the mother’s entitlement to enter the United Kingdom.
21.All witnesses were cross-examined and one witness of the mother, Ms Y, was cross-examined twice[3] by telephone link from the United Kingdom. The cross-examination of this witness was to be done by video link between this courtroom and the Royal Courts of Justice in London and was scheduled to commence at 6.30 pm on 1 August 2011. However, on the morning of the first day of the hearing, counsel for the wife said that the witness could not, by reason of her employment, attend in London to give evidence. She made an application for cross-examination to be conducted by telephone. The other parties did not object but specified that it was on the basis that cross-examination by telephone was better than no cross-examination at all. Other witnesses of the mother, Mr B and Mr Z, were also not available to attend Court personally and there was ultimately no objection to them being cross-examined by telephone.
[3] Ms Y was cross-examined on Monday 1 August 2011 from 4.30 pm to 4.41pm and on Tuesday 2 August 2011 from 3.15 pm to 3.30 pm.
22.The evidence and submissions were heard over four days of final hearing. It is regrettable that a Hague case of this nature took so long. This was partly due to the number of witnesses required for cross-examination, but was mostly due to presentation of the mother’s case. These cases are difficult inasmuch as there is a specific body of law with which even experienced family law solicitors and counsel are not familiar or may not have encountered previously. A case such as this does not lend itself to scattergun advocacy such as was used on behalf of the mother. There was considerable time wasted on issues which were not sustainable but which counsel for the mother said “is not my strongest point but I don’t want to give it up”. Time was also wasted because counsel for the wife was not careful in framing applications to do with evidence and cross-examination. In making submissions, counsel for the mother frequently misstated the evidence or exaggerated the evidence and had to be pulled up and directed to address what had actually transpired in Court or had been adduced as evidence. The mother’s case was presented so that it obscured rather than focussed on the one real issue upon which the mother should have concentrated. That said, counsel for the mother said that legal assistance was only available for her to appear for two of the four days of the hearing and she remained in the absence of any compulsion to do so.
23.Counsel for the applicant SCA made every concession, which it was reasonable to make.
24.Finally, it will become apparent that, there were witnesses that one could expect to be called by a party but were not. In the SCA’s case, the father’s parents and aunt may have been called to refute allegations pertaining to them. In the mother’s case, her mother and sister could have refuted allegations pertaining to their relationship with the mother. None of these people were called.
25.It is convenient at this point to discuss the rule in Jones v Dunkel[4]. The rule applies where there has been an unexplained failure by one party to call a witness whom he or she might be expected to call.
[4] [1959] HCA 8.
26.It was recently observed by Young J in Denning & Denning [2011] FamCA 160, that:
76.… The so called “rule” in Jones v Dunkel was recently explained by the Full Court of the Family Court in GWR v VAR:[5]
“The decision of the High Court in Jones v Dunkel does little more than confirm what common sense suggests would be the case, namely that where it would be reasonable to expect a party to have called evidence from a witness in relation to an issue, the unexplained failure to do so can justify drawing the inference that the evidence of that witness would not have assisted that party’s cause.”
77.There are some circumstances in which the inference may not be available or may be of little significance and this was explained by Mahoney JA in Fabre v Arenales:[6]
“But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness. He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him. The reason why the witness is not called may have no relevant relationship with the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say. A party is not, under pain of a detrimental inference, required to call a witness “blind”.
… A Jones v Dunkel inference may not arise if, for example, the witness has a reason for not telling the truth or refusing to assist and the party who may well call him is aware of this.”
78.The Court cannot use an inference to fill in gaps that may exist in the state of the evidence before the Court.[7] It remains at the discretion of the Court to determine whether inferences should, in all of the circumstances be properly drawn.
[5] [2006] FamCA 894 at 29.
[6] (1992) 27 NSWLR 437 at 449 to 450.
[7] Jones v Dunkel (supra); West v Government Insurance Office of New South Wales [1981] HCA 38.
27.I agree with the above statements of the rule in Jones v Dunkel. None of the circumstances justifying the non-calling of a witness apply in this case.
28.In SCA v Pavlidou [2008] FamCA 1120 at [51] to [55], I considered whether the fact that potential witnesses are located overseas ought, of itself, displace the rule in Jones v Dunkel (supra). I concluded that it does not. I cited Crennan J (then of the Federal Court of Australia) who considered the question of the failure of a party to call an overseas witness in JMVB Enterprises Pty Ltd v Camoflag Pty Ltd [2005] FCA 1474. In that case, her Honour was required to be satisfied as to who had invented a patent. Her Honour stated that:
… It is a common occurrence in the Federal Court for a relevant witness in a case to give evidence by video link from the USA and also routine for the convenience of anoverseas witness to be taken into account when arrangements are made for such evidence to be given. The Court is entitled to assume that Mr Tait’s evidence would not have assisted the applicant: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.[8]
[8] JMVB Enterprises Pty Ltd v Camoflag Pty Ltd [2005] FCA 1474 at 144.
29.In this case, arrangements for the father’s parents to attend the Royal Courts of Justice in London for cross-examination by video link were well underway when the SCA announced that they would not be called as witnesses. There was no evidence as to the unavailability of the mother’s mother and sister. Quite the opposite as they attended court for the entire hearing.
Standard and burden of proof
30.The relevant test for the Court’s assessment of evidence in this matter is found in s 140 of the Evidence Act 1995 (Cth). Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities.
31.Lord Nicholls discussed the standard of proof to a balance of probabilities in Re: H & Ors (1996) 1 All ER 1[9] in the context of a wardship application. His Lordship relevantly stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
[9] (1996) 1 All ER 1 at 16.
32.In these reasons a statement of fact is a finding of fact.
33.The applicant SCA bears the onus of proving that the children were habitually resident in the United Kingdom immediately prior to the alleged wrongful removal on 12 May 2011.
34.The mother bears the onus of proof in relation to whether either of the exceptions of consent (reg 16(3)(a)(ii)) and grave risk of harm (reg 16(3)(b)) is made out.
35.In the context of the exercise of any discretion to refuse to return the children to the United Kingdom, which arises in the event that an exception to return is found to exist, the parties bear the onus of proof for the result for which they contend. Whilst the “best interests of the child” principles have some application at the point of exercising the discretion, the disposition of the matter is pursuant to Part XIIIAA – Division 2 of the Act so the principles for conducting child-related proceedings provided for in Part VII - Division 12A do not apply to this case.
36.In these reasons, statements of fact are findings of fact.
The parents and relevant history
37.The mother is an Australian citizen by birth. She is 34 years old having been born in 1977. Her mother and sister reside in Melbourne. She is employed in the healthcare field. She is eligible to receive government income tested benefits in Australia but currently has no such entitlement to do so, under any circumstances, in the United Kingdom. Subject to usual means and merit criteria, the mother would be eligible for legal assistance (legal aid) to participate in parenting proceedings in both jurisdictions. She is in receipt of some assistance for these proceedings from Victoria Legal Aid.
38.The father is a British citizen, by birth, and a permanent resident of Australia. He is 33 years old having been born in the United Kingdom in 1978. His family, being his parents and siblings, reside in the County S region together with other members of his extended family. He has worked in Australia in semi skilled positions. In Town E, United Kingdom, he is working for his brother as a part time labourer. He is undertaking a part time fee paying course in a healthcare field in the United Kingdom. He is eligible to receive government income tested benefits in both Australia and the United Kingdom. Subject to usual means and merit criteria, the father would be eligible for legal assistance (legal aid) in either jurisdiction in relation to parenting proceedings. He elected to come to Australia for this hearing and has borne his travel and accommodation costs to do so. He has no legal representation in these proceedings. He has retained a firm of solicitors in London, whom he says specialise in international parental child abduction and Hague applications. Those solicitors assisted the father in preparation of his request and the affidavit evidence which the applicant SCA requested he provide for this proceeding.
39.The parents met in Brisbane, Australia in 2001 when they were both holidaying and staying at the same backpackers’ accommodation. They renewed their acquaintance in November 2002, August 2003 and April 2004 when the mother was travelling in the United Kingdom and Europe. They resided at the home of the father’s parents for the first half of 2005 when the mother returned to Australia. Having proposed marriage to the mother by telephone, the father travelled to Australia to live in late 2005. The couple resided at the home of the mother’s parents for a few months before moving into their own rental accommodation. Their move was partly necessitated by the comfort and convenience of the mother’s father who was gravely ill.
40.The parties married in Australia in 2006. The marriage is not dissolved. A hostile relationship between the mother and her parents-in-law pervades much of the relevant history of this case.
41.In November 2007, the parents purchased a home in a Melbourne suburb. They were able to do so with about $30,000 provided by the father’s mother and they raised mortgage finance to make up the balance. The father’s money represented all of the parents’ initial equity. The mother’s evidence was that the father always considered the home to be more “his” than “theirs”. The father denies this and said that he made it clear to the mother that the money from his mother was half hers. Having heard quite extensive evidence on the issue, I accept that the father considered the home to be his, albeit for the benefit and enjoyment of his family.
42.T was born in December 2007.
43.J was born in April 2009.
44.The mother took part time employment in the healthcare field. The father was in full time employment in a semi skilled position.
45.The paternal grandparents visited Australia on one or two occasions to see the family including such of the children who were born. There was friction between the mother and her mother-in-law and the visits were altered or cut short as a result of the unpleasantness. The family travelled to the United Kingdom to visit the father’s family members. The arrival of the grandchildren, T and J, did not smooth over the disharmony, as even the father’s evidence confirms that his wife and his mother frequently fell into conflict over parenting styles.
46.In 2010 the parents decided to move to England so that the children could get to know their paternal grandparents and other family members. The parents planned to stay with the husband’s parents for about three months until they acquired accommodation of their own. The father’s parents take in boarders. Of the interim accommodation arrangement, the mother deposed[10] :
It was an obvious fact to me and to [the father], prior to moving to the United Kingdom that his mother did not like me. That was one of the reasons why I did not agree to moving to the United Kingdom for good and considering it as our family’s permanent home. My mother-in-law and I did not get on well so much so that when she and her husband visited us here in Australia prior to July 2010 I have had several disagreements with them to the point that I have asked them to leave our house. They were always very unhappy about me being with their son and they did not hide their disappointment. During these occasions, I was not supported by [the father] as he has always sided with his parents when these disagreements have arisen. I knew that there was no way this situation would change when we moved to the United Kingdom. Nevertheless, as I thought that we had a good short-term plan for our family unit with travelling to Europe prior to the children commencing school, I agreed to leave Australia on a temporary basis for this reason. I knew that I would not have a pleasant relationship with [the father’s] family, however, I was willing to go because I had thought that we would only be with them on a temporary basis.
[10] Mother’s affidavit affirmed on 7 July 2011 at par [10].
47.The father denies his mother’s antipathy towards the mother. He deposes that “[t]he relationship was fraught on occasions as are all family relationships but the majority of the time [the mother] and my family got on fine.”[11] The father did not adduce evidence from his mother or father. I infer that their evidence would not have assisted him. I am satisfied that there was considerable friction between the mother and both of the father’s parents, although, on the father’s evidence, the paternal grandfather showed more restraint when dealing with the mother, at least until mid-October 2010. It was apparent from the father’s oral evidence under cross-examination and otherwise, that he is considerably more empathetic and compassionate to the needs and sensibilities of his mother than he is to those of his wife. In short, if the mother genuinely held the reservations to which she later deposed (above), those reservations were justified. I am not satisfied, however, that the mother was overly concerned. My impression of her as a witness[12] was that she lacks insight and perception to a significant degree.
[11] Father’s affidavit sworn on 21 July 2011 at par [9].
[12] The mother was in the witness box on Tuesday from 12.41 pm to 13.01 pm and from 14.08 pm to 15.30pm. On Wednesday she was a witness from 12.30 pm to 13.00 pm and from 14.21 pm to 15.45 pm. A total of 4 hours and 15 minutes.
48.The parents sold their home in Melbourne. The father summarised the situation as follows:-
We owned a house in Australia which we had bought in November 2007 and so as part of our plan to return to England we sold the house. We travelled to England in July 2010. The move to England was intended to be permanent. [The mother] was more anxious about the move than I was and understandably so. We spent $10,000 on estate agents fees and $8,000 on the container to transport our belongings as well as $5,500 on flights. We had discussed the move at length and although our relationship was fragile we both thought that the move would do the family good.
49.The mother’s version was different. She deposed[13]:-
… We had to sell our former matrimonial home because firstly, we had to fund our trip to the United Kingdom as the airfares proved to be very expensive and moving our personal items over there also proved to be quite costly. As we were a young family of four, we decided it was best to bring some of our personal items and basic household items with us so that we did not have to purchase any when we arrived there. We still left quite a considerable amount of personal and household items which we packed in boxes and left at my mother’s garage. Further, we thought at the time that the market was quite good so we wanted to make a financial gain by making some profit out of the sale of our former matrimonial home.
[13] Mother’s affidavit affirmed on 7 July 2011 at par [7].
50.In fact, 161 boxes of household goods were packed and shipped to the United Kingdom. The father packed away only seven boxes which were to remain in Australia, stored in the maternal grandmother’s garage. The father’s evidence, which was not contradicted, was that the seven boxes contained the mother’s family mementos which, she told him, she could not bear to lose if the ship sunk (or words to that effect) and some papers such as old taxation returns. I accept that nearly everything the family owned was shipped to the United Kingdom. The mother’s evidence understated the transhipment of goods. I also accept that the sale of the family home netted the parents approximately $60,000. Of that, they spent between 20% and 25% on airfares and transhipment of goods to effect their relocation to the United Kingdom.
51.The mother alleged that the father required that the house be sold over her suggestion that it could be retained and rented to await their return to Australia in a few years time. The father denied this was the case and said that they sold their Melbourne home so as to be in a position to buy real estate in England. The selling agent’s evidence is corroborative of the father’s position. The selling agent, Mr I, deposed:-
… I originally knew [the mother] through mutual friends and on her return from the UK I became closer to both [the mother] & [the father] only through mutual friends. I had been asked to appraise and subsequently sell [the mother] and [the father’s] home in [H Street]. When we sat around the dining table at their home we discussed the best options to help them move to the United Kingdom. I remember asking the question whether it would be an idea to get an indication of how much they could rent the house for. [The father] and [the mother] both gave the impression that they needed as much money as they could get to start a new life in England. Both [the mother] and [the father] had indicated as the housing market in England was very bad they could possibly buy a cheap property back in the UK.
52.Mr I is a friend of the father and was his witness at the trial. The father was the houseguest of Mr I and his wife, Ms N, during the trial. Ms N was the father’s superior at his employment in Australia prior to the family going to England. Each was cross-examined without being successfully challenged either as to their allegiance to the father or the substance of their evidence. I accept Mr I’s evidence. I accept Ms N’s evidence to the effect that the father resigned well in advance of his departure and told her that his family was moving to England permanently.
53.The father was in charge of retaining a company to pack up the house (161 boxes worth). I accept that the mother may have had misgivings about selling the home initially but, ultimately, she was a willing participant in the sale. Significantly, I accept that it was accepted by both parties that they might buy real estate in England.
54.The parents had a going away party to which friends were invited. My impression is that many (if not most) of the guests were witnesses in this proceeding. Mr I and Ms N were also invited guests but did not attend the going away party due to a prior engagement.
55.Ms J and Mr J, Mr M and Ms M, Mr Z and Mr B each swore affidavits to the effect that the parents said that the family was going to England temporarily, so that the children would know their paternal side of the family, the father could train for some other employment and that they intended to travel. All were cross-examined. I accept that the parents indicated that they would be returning to Melbourne at some time in the future. Most witnesses said two years, Mr Z said “a few years”. I accept the evidence of the party guests insofar as what was said at the party or prior to the family’s departure and the general impression which the father and mother sought to convey. I accept that at no time did the father say to anyone that the move was “permanent”. However, I cannot accept that what the parents told their friends is determinative of what they were actually thinking. The expression of a desire and intention to return to Australia in two or “a few” years must be viewed in the context of also wishing to convey to their guests that they valued their friendship and past companionship and that, even on the father’s case, an eventual return to Australia was not excluded or ruled out as a possibility. So, whilst I accept that the parents gave the impression they would be returning to Australia in a few years, I question the utility of the evidence in an assessment of their actual intention, mutual or otherwise.
56.An exception to the positive spin which, it is my impression, the parties put on their departure was contained in the evidence of Mr J. He and his wife, Ms J, are long-term friends of the parents and the godparents of the children, T and J. They are also the only Australian-based witnesses called by the mother who kept in touch with the parents following their departure. The insights of Mr J and Ms J into the parents are discrepant, as the final paragraphs of their affidavits indicate. The final paragraph of Ms J’s affidavit is as follows:-
I was totally heartbroken that they were going and two years felt like a lifetime, however, [the father] reassured me on so many occasions before they left that it was only going to be for two years and possibly less if things did not work out over there. He said that both [the mother] and himself had made a pact that if either one of them was not happy, they would return to Australia, even if it was only six months of being in England. Never once was it indicated by either [the father] or [the mother] that their move to England was going to be a permanent move.
57.Whereas the final paragraph of Mr J’s affidavit is as follows:-
In personal discussions with [the father], prior to the decision to move temporarily to England, he had stated to me on numerous times that he was not happy in his marriage and had it not been for the children, he would have left already. I personally believe that [the father’s] decision to move to England despite his claims was a premeditated plan and at no time was he ever intending this to be a holiday. I did not tell [the mother] as I did not feel it was my place to do so.
58.My impression is that Mr J was far more objective in his evidence and perceptive in his assessment than Ms J. Likewise, he was a more objective and reflective friend for the parents, particularly for the father. When told of the parents’ plan to move to England, Ms J questioned to herself the utility of the move. However, Mr J went some way to articulating his curiosity. In cross-examination by counsel for the applicant SCA, he gave the following evidence of the kind of discussions he’d had with the father, being[14] :-
… (o)nly general marital issues and, you know, [the father] and I became, like I said, became good friends and we used to tell each other personal information about our lives and our wives and ‑ ‑ ‑
And in relation to what [the father] told you about the move you said that the conversations that you had were with him and [the mother] at the same time?‑‑‑Yes, they were, yes. I did have conversations, I’m pretty sure I had conversations after it with [the father] because I remember saying to him that, you know, Australia is such a good place and you could easily get other employment here and easily get a career, you know, like join the police force or, you know, get a course through here in Australia because, you know, a government subsidised course is here all the time in Australia so I couldn’t understand why England was the place to go to do that because Australia is such a great place for him.
So did you actually have discussions with him about what he would do in relation to pursuing his career in England?‑‑‑No.
You just spoke about why he couldn’t pursue those options here?‑‑‑Yes.
So you had no idea actually what it was that he was going to be doing over there?‑‑‑He never disclosed that. He said that he was going to England to get some type of qualification or course.
[14] Transcript-in-Confidence dated 1 August 2011 at par [7].
59.Later in Mr J’s cross-examination he stated:-
MS PORRITT: And what made you kind of think – what turned it into a suspicion [that he had no intention to return] or made it harden into a bit more certainty for you?‑‑‑I guess just because, you know, what [the father] had told me. You know, he believes that his family were very family orientated and, you know, he had a lot of friends in England and I guess he missed England. He used to say to me that, you know, I was the only real friend that he had here in Australia and Ms J and I were the only real friends that sort of he had. Even though he had other friends, I was like sort of the only – and you know, I appreciated that at the time, you know.
All right, I don’t have any further questions thank you?‑‑‑Thank you.
HER HONOUR: … Is it a bit they were protesting too much about going temporarily that made you suspicious?‑‑‑No. No, I just had a feeling. I just had a feeling, you know. I mean, I knew how [the father] felt, I knew how [the father] felt as a person with [the mother]. I knew how he felt with his family being in England and you know, I guess if you were in his position, you would be feeling the same thing, that his family were on the other side of the earth and he was here and he had only so many people. And I guess just the feeling I had that, you know, [the father] wasn’t happy in general with [the mother], as I said to you in the previous, I would have thought his intention would be to stay there.
60.I am satisfied that the father wanted the family to move to return to the United Kingdom and the mother was prepared to allow that to occur. I do not accept the mother’s evidence that a significant purpose for the family going to the United Kingdom was to travel through Europe. It is clear that the mother dreams of taking the children to Euro Disney in Paris, to Turkey to see where her grandfather did wartime service in the Armed Forces and that Hawaii very much appeals to her as a destination. However, to say that she and the father shared an intention to travel extensively throughout Europe is not a proposition that I can accept on the evidence. The parents sent what amounted to all their household possessions to the United Kingdom, at very considerable cost to themselves. The father did not get employment or try to earn an income which was consistent with saving money for recreational travel. When life in the home of the father’s parents was untenable but inescapable, the parents did not take the opportunity to travel, notwithstanding that they had access to capital.
61.The mother’s evidence was that the father reneged on his agreement to travel around Europe. However, my very strong impression is that the father never embraced the idea of any such travel. He wanted only to return to the region where his family lived and, once there, he was content to remain. I accept that, prior to leaving Australia, the mother said to their friends, and in the father’s presence, that the family would travel but, again, I doubt the utility of the evidence. It does little more than state the obvious. That is, Australians are acutely aware of how much more accessible Europe is from the United Kingdom than (anywhere is) from Australia.
62.The family departed Australia on or about 20 July 2010. The family’s departure cards were completed by the father stating that they were leaving Australia temporarily and expecting to return in five years. The father was not forthcoming with this evidence. The independent children’s lawyer had to secure production of the cards. Eventually, he conceded that the cards were completed accurately and truthfully. I do not consider that turns much on the information. It is consistent with the position of each parent.
63.The mother entered the United Kingdom on a settlement spouse visa which, whilst current, entitled her to work but she was without “recourse to public funds’ which, essentially, means government benefits and pensions.
64.Within a month or so of arriving, the wife obtained full time employment in the healthcare field and the children were enrolled in part time child care. The father did not obtain employment. His evidence was that he spent time “reassimilating into my family” (or words to the effect). Eventually, he enrolled in a fee paying course in a healthcare field, in which endeavour, he observed, the mother supported him because he would give her healthcare practices. After the mother commenced employment, the couple paid his parents ₤100 per week for board. In his oral evidence he commented that the mother did little around the home and he wanted to pay board because his mother did all the cooking and cleaning for them. He said that he could not help with housework because he needed to keep the children occupied. Later, the father started to work for his brother as a part time labourer. Then, on days the father worked as well, the mother took the children to day care on her way to work.
65.My impression is that the father reassimilated nicely into his family and his cricket activities. The mother became unhappy. She made some friends at work but not many. She craved the father’s attention but it was not forthcoming. The mother received advice and recommendations from her mother-in-law which the mother appears to have resented. To make things worse, the father took his mother’s side against his wife and, my impression is that he, was generally unsupportive of her.
66.On or about 12 October 2010, the mother and father went to the bank to get the mother’s name put on the father’s account(s). This could not be done until the mother had been living in the United Kingdom for three months. The father enquired of the bank officer about mortgage finance to enable them to buy property in the United Kingdom. They were told that, as the father had no current credit history, they would not be eligible for some months. The fact that the father had no employment could not have assisted the situation either. The father’s case is that he and the mother were disappointed at the news because they had wanted to acquire a house. The mother’s case is that the discussion about buying a house came as a complete shock to her, as the father had never suggested it before. She said that she was also upset at her realisation that the father had no intention of “travelling Europe” because, she accepted, they could never afford to both travel and purchase real estate. Either way, the mother’s upset must have been marked because the father said that he thought that she might be “bi-polar”, that he told her that she needed to resume her anti-depressant medication and to consult a medical practitioner.
67.The mother relied on a record of her attendance upon a medical practitioner, Dr C, on 12 October 2010[15] which reads as follows (errors included):-
12/10/2010 Had a chat to patient re venlafaxine. from Melbourne. been here 3/12. 2 young children, living with her mother-in-law, cannot buy house for few months. misses home. suggest not reduce a/d’s at present. continue. Offered counselling. chat re bipolar – prob not this. more circumstantial depression.
[15] Mother’s affidavit affirmed 14 July 2011, annexure “[…]4”.
68.The mother says that she told the doctor that she was upset that the father wanted to buy a house. The file note is not corroborative of that proposition. The note was tendered by the mother. There was no evidence from her doctor clarifying the business record. On 14 October 2010 there was a serious argument between the mother and her father–in-law. The father’s evidence was given to exculpate his mother from blame. However, the altercation was by all accounts, including the father’s, dreadful. The paternal grandmother had bitten one of the children to teach that child not to bite the other child. The mother was upset and angry that the paternal grandmother had done so. The father-in-law stepped in to support his wife. The father described how his father had reached breaking point in that he could no longer tolerate the mother’s poor behaviour to his wife and the fact that the mother did not follow her mother in law’s useful advice. The father in law screamed at the mother and made (loud) suggestions that the mother be sent packing, that the father freeze all of their bank accounts (which strikes me as rather more considered than the heat of the moment would have allowed) and that the father should keep the children. The mother’s evidence was that her father in law spat at her. The father’s evidence was that his father has false teeth and he was shouting at the mother with such ferocity that saliva was escaping around his false teeth, out of his mouth and inadvertently hit the mother. The mother fled the home, made various distraught calls home to friends, principally to the Ms J and Mr J, and ended up at the home of the father’s aunt who said, in effect, that the father-in-law had behaved in this manner before.
69.Ms J and Mr J called the local police in Town E and the Australian Embassy. In the absence of a specific authority from the mother, Ms J and Mr J did not persist with a complaint to the police so no action was taken by the police. The mother received a call and a follow up enquiry from the consular office. I am satisfied that the mother’s plight was appropriately responded to within the United Kingdom. It is noteworthy, however, that the mother sought help from friends in Australia rather than from her mother or sister in Australia or anyone in the United Kingdom.
70.The father’s evidence was that his father subsequently apologised to the mother and she returned to the father’s family home. However, under cross-examination, the father conceded that the mother did not ever recover from the incident and the ill will between her and his parents was merely masked. His evidence, sworn 21 July 2011, was consistent with this when he deposed at paragraph 14:-
I accept that there have been times after our arrival in England where things have not been easy. I do accept that things must have been more difficult for [the mother] as this is where I was born and brought up. However, [the mother’s] behaviour did not assist. I told [the mother] that she would need to try to make more of an effort to embrace the change and she simply refused to make an effort. I did try to be supportive but her attitude to us living at my parents was extremely negative. [The mother’s] sole aim was to spend money and shop. She would disagree with advice she was given by my family and showed me very little affection. …
71.The mother and father decided to move out of the father’s family home as soon as possible but could not procure suitable rental accommodation until 2011.
72.At the mother’s appointment with Dr C on 18 November 2010 he recorded that the mother was “hoping to move into house 2/52. feeling ok”.
73.In November 2010 the father sought legal advice because he feared that the mother may try to take the children back to Australia without his consent. He was advised to hide the children’s passports. He removed the children’s Australian passports and his own from the usual storage place known to the mother but left the children’s British passports and the mother’s Australian passport. The mother confirms that she noticed that the passports were missing, and discussed it with Ms J at the time, but denied that she ever intended to leave. Her evidence, given more than once, was “I had no reason to leave, I was married, I loved my husband” (or words to that effect). The father replaced the passports after the family moved into rental accommodation. I am satisfied that the mother was miserable enough that the father’s fears were reasonably held, although I accept that she had no intention or desire to leave England with or without the children.
74.The couple secured rental accommodation, namely a house, in mid-January 2011. Due to their lack of credit history, they were required to pay five months rent in advance in addition to two months bond. They paid the rent from capital and the lease expired on 14 August 2011. With the assistance of friends and the father’s family, they retrieved their household goods from storage and moved out of the home of the father’s parents. The mother’s evidence was that, thereafter, she did not put herself in the company of her parents-in-law unless she had to or thought that it would be a pleasant occasion for the father and/or the children. I accept that evidence.
75.Once housed independently of the father’s parents, the mother still thought that the father was spending too much time at cricket or outside the home and not enough time with her and the children and she complained accordingly. The father’s evidence, contained in the affidavit[16] in support of his application to the International Child Abduction & Contact Unit in the United Kingdom, was as follows:-
10. [The mother] has never been very affectionate and I put this down to the lack of affection she herself received from her own family. We agreed to be more experimental with our sex lives, [the mother] having said she was attracted to women and this resulted in us having a sexual relationship with one of her work colleagues and friend at our home on three occasions. On the third occasion although it was anticipated that [the mother] would participate she decided not to, although she was present and did not object. This led to her confiding in another work colleague, [Ms S] and accusing me of cheating on her. I believe her decision not to participate was pre-meditated. Things settled down after that and I believe that this was a way of [the mother] demonstrating she was not happy with things at home, for example [the mother] did not like me playing cricket at weekends saying I was not spending time with the family.
[16] Father’s affidavit sworn 17 May 2011 at par [10].
76.The mother did not take issue with the fact that she was unhappy and that the relationship lacked affection as deposed by the father. Her affidavit evidence[17] and her oral evidence are consistent and were to the effect she did not want or intend to leave England until “after he told me he wanted a divorce from me”. That occurred on Monday 9 May 2011, only three days prior to her removal of the children.
[17] Mother’s affidavit sworn 7 July 2011 at par [37(vi) to (viii)].
77.The father described the events immediately prior to the removal of the children as follows[18]:-
12.On Monday 9th May I overslept and [the mother] did not wake me. We argued again and this culminated in me telling her that evening I wanted a divorce. We had been to counselling previously in Australia and [the mother] did not really participate in the process or be constructive so I did not think it would help if we tried counselling again. [The mother] decided to go to her friend [Ms S’s] house and we texted that evening after she came home. On Tuesday 10th May we did not really discuss matters. On Wednesday 11th May I had an appointment at 7pm with my Osteopath who is allowing me to practice [healthcare practices] on him as although I am a labourer I am a [healthcare] student doing a […] diploma. He had forgotten about our appointment and so when I returned home at 7.20pm I found [Ms S] at our house with [the mother]. [Ms S] had a bag which had some of the children’s night time clothing on top. Perhaps I should have seen what was happening but [the mother] told me that she just needed some space and was just going to spend the night with the children at [Ms S’s] house. I did think she had not thought things through as she did not know where the children would sleep but I understood that it was difficult with us living under the same roof and did not think it would harm for one night. I made it clear that although I did not mind she should have told me. However after further discussion she decided not to go and so [Ms S] left. [Ms S] took her bag with her but left the children’s clothing. I told [the mother] that financially I would support her and that I wanted the children to live with me as I was the one who had the time to look after them. I said that if she wanted to go to Australia on holiday with the children that I would not have any objections which we were discussing in the context of how we would resolve the future once we had separated. I made it clear to [the mother] that this was the children’s home and this is where they lived. [The mother] did not tell me of any immediate plans and we were talking generally about where we would live and how we would survive.
13.On Thursday 12th May I woke up unwell and [the mother] left the house with the children. I thought she was dropping them off at nursery and going to work. In the afternoon I spoke to my mother who told me that the children had not been at nursery as my nephew also attends the same nursery. I immediately rang the nursery and they told me that [the mother] had called them saying that the children would not be attending as they had conjunctivitis. They had had this earlier in the week but they were perfectly well enough to attend nursery. I then rang [the mother’s] work and a senior [employee] called [Ms CC] called me back. She told me that [the mother] had been to work but just to tell them that she was leaving. She left the keys to our car in their reception.
14.I called the police who told me that there was nothing that they could do as this was child abduction and recommended that I see a solicitor. The senior [employee] rang me again and told me that she had ‘gone home’ that morning. When I questioned this statement I was told that she had flown to Australia. I phoned the police again and they said that they could help and sent two officers around. I collected the keys from the [healthcare] practice to check whether there was a note in the car but there was not. [Ms CC] would not let me speak to [Ms S] on the telephone. After the police took a statement from me they went and spoke to [Ms S] at the [healthcare] practice and then reported back to me that they thought [Ms S] knew more than she was letting on. They subsequently paid her another visit and she then confessed that she knew they had caught a 3pm flight to Melbourne.
[18] Father’s affidavit sworn 17 May 2011 at [12], [13] and [14].
78.The mother’s response[19] is a combination of hyperbole, supposition and argument together with a bald assertion that the father knew about, and consented to, her removal of the children to Australia. For instance:-
I deny his allegation that I did not tell him about my intensions to return to Australia. He knew what my intention was and I had told him that I felt unsupported in the United Kingdom particularly after he told me he wanted a divorce from me.
And:-
I deny abducting the children. I did not. I obtained the father’s consent and he willingly gave it prior to us leaving.
[19] Mother’s affidavit sworn 7 July 2011 at [37(vii) to (x)].
79.The father contacted the mother and children by telephone on and after 15 May 2011. He recorded many, if not all, of the conversations. Some of the recordings were professionally transcribed and are annexed to his affidavit sworn on 21 July 2011. The mother takes issue with whether all conversations are recorded. However, the father was not cross-examined (when he could have been) about which conversations or content was allegedly missing. There was no challenge to the accuracy of the transcripts. I accept that the transcripts are accurate. I will discuss the content below in the context of the exception of consent which arises under reg 16(3)(ii).
Habitual residence
80.The Regulations in relation to mandatory return apply only if T and J were habitually resident in the United Kingdom immediately prior to the mother’s removal of them to Australia on 12 May 2011.
81.Habitual residence is a question of fact in each individual case.
82.In LK v Director-General, Department of Community Services[20] the High Court considered the determination of habitual residence. The Court makes two preliminary observations regarding the criteria for determining a child’s place of habitual residence. First, there is a wide variety of circumstances that bear upon where a child resides and whether that residence is habitual. Second, the past and present intentions of a child’s parents will affect the significance to be attached to particular circumstances, such as the duration of a person’s connections with a place of residence.
[20] [2009] HCA 9 (11 March 2009).
83.Regarding intention, the High Court notes that a parent’s intentions will usually be relevant, but not necessarily determinative of habitual residence. Furthermore, the Court notes that a person’s intentions may be ambiguous. In the case before the High Court, the mother had left Israel with the children on the understanding that if she and the father reconciled they would return to Israel, but if they did not reconcile she and the children would remain in Australia. The High Court found that it was appropriate to have regard to the steps the mother took before and after her arrival in Australia as supporting the mother’s argument that it was her intention to move to Australia unless the marriage reconciled. The High Court draws several points from the ambiguities of the parents’ intentions:
[32]… 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. (original emphasis)
[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.
84.Following the above discussion, the Court unanimously concluded that a closed set, or a hierarchical set, of criteria would not assist in making a decision which could potentially fall into a very wide range of circumstances. The principles expressed by the High Court are binding on this Court.
85.The plurality of the High Court in LK[21] (supra) held that the establishment of habitual residence involves a search for the connection between the child and the requesting state in which it is alleged the child was habitually resident immediately before the wrongful retention (or removal). Oftentimes habitual residence is conceded but, even if it is contested, the fact of the matter might be easily discernable and the enquiry will be contained to narrow proportions. However, this is not such a case. The present proceeding has required an extensive factual enquiry which, chronologically, predates the alleged wrongful retention (mid-May 2011) by more than a year and back to before the going away party to which all the supporting witnesses were invited. An examination of that breadth was necessary in order to determine whether the provisions of the 1980 Convention (and the Regulations by which it is implemented) are properly engaged. Hopefully, this will not always be the case but given the unusual facts of this case, it was. As the Court of Appeal of New Zealand said in Punter v Secretary for Justice[22]:
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: …
[21] At par [44].
[22] [2007] 1 NZLR 40 at par [88] (pp 61 - 62) and extracted in the reasons of the plurality in LK (supra) at par [44].
86.The High Court decision of LK (supra) and the subsequent decision of MW v Director-General of the Department of Community Services[23] were discussed in the recent decision of Zotkiewicz & Commissioner of Police (No. 2).[24] In Zotkiewicz the Full Court, comprising May, Thackray and Moncrieff JJ, stated that:
82.… Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.
83.In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”.
[23](2008) 82 ALJR 629.
[24][2011] FamCAFC 147 per May, Thackray and Moncrieff JJ at [89] to [90].
87.I accept the above passages as a correct statement of the law and will apply those principles to my determination of this case. In my view, in Zotkiewicz (supra), their Honours’ summary of the judicial task is of real assistance to courts at first instance. With the utmost respect, it accurately and succinctly describes the fact finding task. It picks up the nuances in Waite J’s statement of principles in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 (at 955)[25] and it does so without descriptions of facts from other cases, which are often included to elucidate but frequently restrict or obscure the essence of the exercise at hand.
[25] In Re B, Waite J set out the following three principles as emerging from authorities concerning habitual residence:
1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither party can change it without the express or tacit consent of the other or order of the court.
2. 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 it is of short or 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.
3. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention.
88.Zotkiewicz (supra) also raised squarely for consideration by the Full Court the difficult task of litigants and the Courts to identify or repudiate a “shared intention” particularly in relation to families which have recently moved between contracting states. To my mind, those cases are difficult because there may be a confluence of compatible intentions upon which each parent acts rather than one comprehensive, internally consistent set of intentions and contingencies upon which both parents have agreed at any point in time and then act upon. It should not be forgotten that the emphasis on ascertaining a “shared intention” has been for the purpose of attributing that intention to minor children (who we concede are unable to form that intention themselves) on the basis that “the habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents.” (per Waite J in Re B (supra)).
89.In the context of “settled purposes” and whether the “underlying reality of the connection between the child and [the contracting state to which the family had moved] was such as to justify a finding he was habitually resident in that country, their Honours in Zotkiewicz (supra) provide the following discussion. It is both informative and interesting in the context of this case:-
71.The High Court went on to say [in LK] at 599 [44], when adopting the views of the plurality in Punter,:
… 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 purposes 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.
72.The reference by the High Court in this passage to a “shared intention” gives rise to the question of how the law deals with cases where the intentions of one parent may be described as “settled”, but the other parent has different intentions that cannot be so described. This we perceive is more difficult where the parents are living together. In an article often cited, Clive E.M., ‘The Concept of Habitual Residence’, [1997] The Juridical Review 137, Dr Clive concluded, (at 145), that in cases where both parents have an equal right to fix the child’s place of residence, and there appears to be a “genuine difference” in their respective intentions, “then the conclusion must be that there is no settled purpose or intention”.
73.At the very least, as the High Court said in LK at 596 [34], the “possibility of ambiguity or uncertainty on the part of one or both [parents] must be acknowledged” (our emphasis added).
74.We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”.
75.What amounts to an “appreciable period” will differ from case to case, and in our view must be dependent to some extent on the intentions of the parents. Thus, in a case which was mentioned in Crooks J’s reasons, the appellate court declined to interfere with a finding that a family had acquired a fresh habitual residence only one month after arrival in a new country. However, Butler-Sloss LJ, in delivering the principal judgment of the English Court of Appeal, was at pains to say (our emphasis added), “The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time”: Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555 (“Re F”).
76.There are, of course, cases where the acknowledged ambiguity or uncertainty in the intentions of one or both of the parents will become irrelevant because they have been pushed into the background by “the brute force of geography and duration” (Clive, supra at 140). Thus, in Zenel v Haddow [1993] S.L.T. 975, a child was found to be habitually resident in Australia after 15 months, notwithstanding assertions there was no settled intention on the part of the parents to remain in Australia. In that case Lord Marnoch said at 979:
It seems to me that, 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.
77.On the other hand, as Dr Clive recognised (at 142), “the most difficult cases on habitual residence are usually those where the question is whether there has been a recent change in habitual residence”. We agree with him that in those cases, “the element of adequate duration is absent or doubtful and it is necessary to have regard to such factors as purpose and intention”. We recognise that in examining factors such as “purpose” and “intention” there may be cases in which it could be said that habitual residence has been acquired immediately (for examples, see Re M (Minors) [1993] 1 FLR 495 at 503 (“Re M (Minors)”); however, we also consider such cases would have to be seen as the exception, even allowing for the fact that there may be policy reasons against finding that a child does not have a place of habitual residence (as to which see LK at 594 [26], but see also at 595 [32]).
78.We also accept that merely because the purpose of an international relocation may be to allow parents to work on their relationship does not mean their purpose in relocating cannot be regarded as “settled”. Re B is an example of one such case. Similarly, the fact one party may be reluctant to agree to a move to a new jurisdiction; has misgivings about the state of the marital relationship; and has taken advice about a divorce before departing, does not mean they will not acquire a place of habitual residence in the new jurisdiction (see Feder v Evans-Feder (1995) 63 F. 3d 217).
79.On the other hand, the High Court held in LK (at 595 [29]) that the mother could not be said to have either a settled intention to reside permanently in Israel or a settled intention to reside permanently in Australia in circumstances where she had left Israel and come to Australia with the children “on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return”. The High Court went on to say (at 595 [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”.
80.Beaumont and McEleavy’s text, Beaumont, P & McEleavy, P, The Hague Convention on International Child Abduction, Oxford University Press, London, 1999, has been described as the “leading treatise on the Convention” (Mozes, supra at 1072). The learned authors opined (at 105) that “parents must exercise great care if considering whether to relocate to a different State, in particular where the relocation is itself an attempt to revive an ailing relationship”. They went on to say, “The majority of the case law indicates that should a parent in such a situation wish to change their mind they would have to do so in the immediate aftermath of their arrival.” For authority for the latter proposition they cited Paterson v Casse (1995) FLC 92-629 [Department of Health and Community Services, State Central Authority v Casse]. They then went on to suggest (at 107) that “ordinarily a period of six months residence should be required before a residence may be classified as being habitual”, albeit recognising that in England “the courts have, with few exceptions, adopted a very liberal interpretation of the time element required for the acquisition of a habitual residence”.
81.Whilst we accept there is no basis for selecting an arbitrary period such as six months, we consider there is nevertheless merit in the argument of Beaumont and McEleavy (at 101 and 108) that it is important to find a “strong and readily perceptible link” between the child and the country in which he is said to be habitually resident, as this recognises “that if children are to be linked to a State, and sent back there, they should have “a real and active connection with that place”. Additionally, as they say (at 108), concentration on the issue of whether, from the child’s perspective, there is a “real and active connection” with the purported place of habitual residence “further serves to distinguish the concept of habitual residence from that of domicile, which can be acquired immediately”.
135.My enquiry was as follows:-
In a Hague case, which I am hearing at the moment, the mother and two young children may return to reside in [Town E] but she will wish to make an application for parenting orders including permission to relocate the children to reside permanently and quickly in Melbourne, Australia.
I think their region is [County S] and the nearest Court may be in [Town L].
I have been requested to enquire about timelines for proceedings. Neither parent has done anything by way of retaining solicitors local to where they reside much less initiated any proceedings. The proceedings will be contested, very likely on an interim basis as to care and contact as well as on a final basis. There will be parties and not less than four family member witnesses for the father and probably a few lay witnesses for the mother plus a medical expert. They will need a family report or social science assessment. Money is pretty tight and the mother's existence from month to month will be difficult, emotionally and financially. She may be eligible for legal aid but she will not have access to "public monies".
I accept that you cannot provide a timetable for proceedings which are yet to be instituted. However, any indication would be appreciated together with any information about how the parents, or one of them, can apply for a priority listing on the basis that it is an international relocation case with a mother who will struggle. The father is surrounded by family so, I anticipate, that he will not be so concerned about time delays.
136.The response arrived overnight in the following terms:-
My clerk has made enquiries of [Town B] County Court where the local lead family judge sits and has been given the following broad indications by the listing officer about when hearings, including a relocation application, could be listed.
A 1 hour short hearing could be listed in about 2 weeks.
A 1 day, reasonably urgent hearing, could be listed in September.
A 3/5 day hearing could be listed in October.
A report from the Children and Family Court Advisory and Support Service (CAFCASS) can be obtained, depending on the extent of the required enquiries, within about 6 weeks. I would expect this to be for a short report and anything substantial to take longer.
The above of course depends on how long the evidence will take to collate and how long the hearings will be. Any party can apply to the court to seek to obtain an expedited hearing. The extent to which any such application might be successful would depend on the urgency and the court's ability to provide a hearing.
I hope the above is the sort of information you need. If you would like anything more, please let me know.
137.It appears that the availability of a judicial determination in the United Kingdom is in line with or quicker than what would be available in Australia.
138.The pre-conditions proposed by the SCA, with the father’s consent, were reasonable and, in the circumstances, quite generous. In my view, they are adequate for the purpose of softening the disruption of the children and the mother upon their return to the United Kingdom to a degree which is acceptable. That said, being without a car in the United Kingdom would have presented difficulties for the mother. The former family home is on a hill. The children are young and would have to go shopping with the mother as they could not be left unattended. I may well have required that, for one month, whichever parent had care of the children be entitled to the family car. This would have created difficulties for the father’s employment but it would have been a short term measure in which conveniences (and inconveniences) were required to be balanced. However, after the month it would be an issue for a court of competent jurisdiction in the United Kingdom to determine what are appropriate provisions for the mother and children.
139.Insofar as the mother’s outline of case asserts that her parenting capacity would be adversely impacted by the children being returned to the United Kingdom, there is no expert evidence to support that proposition. I am satisfied that the return would be disruptive and difficult but it would not, in my view, be intolerable or harmful in the terms of reg 16(3)(b).
140.The mother adduced evidence in support of her complaint about being a victim of domestic violence, including, but not limited to, economic and financial violence. That evidence fell short of satisfying me that domestic violence had occurred let alone that it was likely to occur again in circumstances where the mother could not invoke the intervention of the appropriate authorities and the courts in the United Kingdom.
141.I conclude that the mother’s case under reg 16(3)(b) is without merit. Had I found that T and J were habitually resident in the United Kingdom, no discretion to refuse the return would have arisen in this context on the facts of this case.
Consent
142.Regulation 16(2)(a)(ii) provides that a court may refuse to return a child to its home country if a person opposing return establishes that the requesting parent had consented or subsequently acquiesced in the child being removed to, or retained in, Australia. Practically, it mirrors the provisions of Article 13(a) of the Convention.
143.In the mother’s case outline, filed on the first day of the trial, it was asserted that:-
1. In discussions between the parties at the time of separation, the Wife told the Husband that she would be returning to Australia with the children to live and he consented.
2. On the day prior to the Wife and the children's return to Australia the Husband was present and consented to the Wife moving out of the family home with the children.
3. Moreover, with the knowledge that the Wife had the means to return to Australia with the children the Husband took no steps to prevent this occurring notwithstanding that he had had legal advice at an earlier stage and had previously hidden the children's passports.
4. It is the Wife's case that the husband in fact consented to the return of the children to Australia to live and that he has since changed his mind.
144.On the second day of the hearing the mother gave evidence that she had told the father on 10 May 2011 (two days prior to her departure) that her mother had purchased airline tickets for herself and the children and that they would be departing the United Kingdom to return to Australia on Thursday 12 May 2011. At that point, her evidence was that the father readily consented to her removal of the children. When pressed in cross-examination on the third day of the hearing, she said that the father had glared at her and said nothing but she was sure that he had heard her. Later, she conceded that he had been walking away from her at the time at the time of the alleged conversation and may not have heard what she said.
145.The father denies that he had any prior warning or notice of the mother’s removal of the children or any details to do with the removal or that he consented at any stage to the removal. The father’s evidence in this regard and in relation to the events leading up to the removal and the events following the removal, vis a vis consent, has been consistent.
146.The mother affirmed three affidavits in this proceeding being those affirmed on 7 July, 14 July and 29 July 2011. Each affidavit deals with alleged consent in only general terms. Each affidavit was prepared by a legal practitioner. Additionally, a proof of further evidence of the mother was tendered on 1 August 2011 but it is fair to say that was supposed to relate only to the exception of grave risk of harm or intolerable situation. The mother did not raise the specifics of the father’s consent, including her prior notice of her departure plans, in any of her affidavits.
147.The mother did not raise details of her prior notice to the father of the departure details for herself and the children in her case outline[35] filed on the first day of the hearing.
[35] Exhibit “M3”.
148.Counsel for the mother failed or neglected to cross-examine the father (whose evidence preceded the mother’s evidence) to the effect that the mother had told him on the evening of Tuesday 10 May 2011 of the imminent departure of herself and the children from the United Kingdom or the details of their flights or how the tickets had been paid for.
149.There were a number of telephone conversations between the father and the mother which were transcribed. None of the many passages to which I have been referred are consistent, expressly or by implication, with the father having had prior notice of the mother’s arrangements to return to Australia with the children. All of the transcripts and all of the recordings were available to all counsel.
150.Some of the recorded conversations include the father asking repeatedly how the mother paid for the tickets and, on one occasion, she says that a friend, “[Ms JJ]” paid for the tickets. The mother was asked why she told the father that her friend, [Ms JJ], had paid for the tickets if she had already told the father on 10 May 2011 that her mother had paid for the tickets (as she says and the father denies). The mother’s explanation was that the father was “yelling” or “talking sternly” to her and she was frightened that her mother may suffer repercussions if she told the father that she had funded the children’s return to Australia. The transcript was not corroborative of the mother’s assertion about the father’s language so the recording was played. The father’s voice was neither loud nor stern. It was not objectively intimidating either.
151.There are further conversations in which the father states, in effect, that the mother removed the children without his consent and the mother does not demur:-
[THE FATHER]: You took my children away. You didn’t even ask me.
[THE MOTHER]: You didn’t want me. You didn’t want me.
[THE FATHER]: That’s got nothing to do with you taking the children.
[THE MOTHER]: Because I wanted them to come here and see my family in case they can never come back again.
[THE FATHER]: (Sigh)
[THE MOTHER]: If things didn’t go right between us then you wouldn’t let me bring them here.
[THE FATHER]: What did I say to you the night before?
[THE MOTHER]: (Unclear) again.
[THE FATHER]: I told you down the line, in the future, I would let you take them to Australia for a holiday. (Pause) Didn’t I?
[THE MOTHER]: Yeah.
[THE FATHER]: You already had the flight booked. You already had it all planned. And you still won’t tell me when you booked it. (Pause) Why won’t you tell me when you booked the flight?
[THE MOTHER]: Because it doesn’t matter, [the father’s first name].
[THE FATHER]: It matters to me. It matters to me [the mother’s first name].
[THE MOTHER]: And what matters to me you won’t answer either.
[THE FATHER]: What’s that?
[THE MOTHER]: Do you still want a divorce.? Are we over?
[THE FATHER]: [The mother’s first name], you can’t give me ultimatums, do I still want a divorce ---
[THE MOTHER]: I’m not ---
[THE FATHER]: --- when you’re on the other side of the world with my children. What am I supposed to say, “No [the mother’s first name]?” “I want you back now. Come back.” And then you’re going to fly back and then I can change my mind? I’m not going to lie.
[THE MOTHER]: I don’t want you to lie. I just need to know.
[THE FATHER]: I don’t know what I want now. All I know is I want my children back. That’s all I’m thinking about. Every day, all day ---
[THE MOTHER]: I know --- I know ---
[THE FATHER]: Every time I see a child I can’t help myself but cry. I haven’t seen my children for three weeks.
[THE MOTHER]: [The father’s first name], I’m your wife. What about me? (Unclear)
[THE FATHER]: You … you ran away … you ran away with my children. You ran away with my children. What am I supposed to think of you? How would you have felt about me, all those times in Australia you kept telling me to go back to England? If I’d just upped with the children and gone and one day you’d found yourself at home on your own, how would you have felt about me? How would you have felt? You would have hated me. You would have hated me, [the mother’s first name].
[THE MOTHER]: But ---
[THE FATHER]: You take away the one thing that you know in life that you’ll love more then anything. And you took that away from me.
[THE MOTHER]: Yeah, reverse that [the father’s first name]. Because you’re taking your love away from me.
[THE FATHER]: No, it’s got nothing to do with me or you. Those children, we both said and have always said, there’s nothing that we love more, those children.
[THE MOTHER]: [The father’s first name] ---
[THE FATHER]: And you‘ve taken them away because we fell out. That’s not fair. You can’t start asking me questions about how I feel about you, what I want to do when you’re on the other side of the world with my children.
[THE MOTHER]: How is that not fair? I’m here not knowing if my husband wants me, where I’m going, what I’m doing.
[THE FATHER]: I’m not going to say I want you when you’re on the other side of the world with my children. The only way you’re going to fix this is by doing it here together. You’re not going to fix it by ---
[THE MOTHER]: You’re saying to me, “NO, I don’t want you”. I’m not that stupid, [the father’s first name].
[THE FATHER]: What?
[THE MOTHER]: I’m not coming all that way for you to reject me and be left on my own. I’m not doing it.
[THE FATHER]: So what about my children?
[THE MOTHER]: Well, can’t you just answer if you don’t want to be with me any more? I just need you to tell me.
[THE FATHER]: [The mother’s first name], I can’t answer that when you’ve got my children on the other side of the world. It’s blackmail.
[THE MOTHER]: It’s not blackmail.
[THE FATHER]: Well, you’ve just said, you’re not going to come all this way if you don’t know that I don’t want you anymore.
[THE MOTHER]: It’s the reason I’m here, because you don’t want me. I’m just making sure you still don’t want me.
[THE FATHER]: [The mother’s first name], you’ve been saying to me for the last three months that you don’t want me.
And, later:-
[THE FATHER]: You’ve made the biggest mistake by running back there with the children.
[THE MOTHER]: Well, I think I’ve done the right thing.
[THE FATHER]: You think you’ve done the right thing by abducting my children?
[THE MOTHER]: They’re not abducted. They’re allowed to be here. They’re on holiday.
[THE FATHER]: So when’s the return flight? A return flight is when you have a holiday. You take clothes with you when you have a holiday. You take a suitcase. You don’t just disappear in the morning, leave your car at work and get a taxi to the airport without telling the husband or father.
[THE MOTHER]: It would have made no difference, [the father’s first name]. You told me you didn’t want me. What was I meant to do?
[THE FATHER]: You kept telling me you didn’t want me. Stop using that as an excuse, [the mother’s first name].
[THE MOTHER]: You said divorce, not me.
[THE FATHER]: It’s the same ---
[THE MOTHER]: I don’t want a divorce. But if you want one, that’s fine.
[THE FATHER]: It’s the same thing.
152.The mother gave evidence that there were telephone conversations additional to those recorded by the father. She could not refer to any conversation specifically other than to say, in effect, that the father had reproduced only those conversations which assisted his case. I do not accept that evidence. The telephone conversations to which I was referred either as transcript annexed to the father’s affidavit of 22 July 2011 or those excerpts to which I listened in court, can stand alone and are strongly corroborative of the father’s case. Ms Y is a friend of the mother whose cross-examination was interposed into the applicant’s case on the evening of the first day of the trial. No evidence was led from her by counsel for the mother and none emerged in cross examination to the effect that the mother had provided details of the departure plans to the father. This was notwithstanding that she was present during quite extensive discussions between the parents on the evening prior to the mother’s removal of the children, including discussions about what proportion of furniture the mother would have and money matters. Ms Y did give evidence about the father having agreed that the mother and children could return to Australia but it was vague, full of supposition and had about it a strong flavour of selective reconstruction. Subsequently, the mother gave evidence that she had told Ms Y her travel plans on the Tuesday preceding her departure and that, when Ms Y visited the parents’ home on the evening before the day of departure, Ms Y was aware they would travel the next day. Again there was no explanation from counsel for the mother as to why she failed or neglected to adduce that evidence from Ms Y (either in affidavit or viva voce, with leave).
153.I acceded to an application by the ICL to recall Ms Y for cross-examination given that nothing to this effect had been able to tested because this aspect of the mother’s case had not been known when Ms Y (who was the mother’s witness) had been called for cross-examination. On being recalled, Ms Y said that the mother had spoken earlier in the week of her departure about plans to take the children back to Australia but that she did not consider anything to be definite. Significantly, on Thursday 12 May, she was surprised to see the mother and children were packed and on their way to the airport. I do not regard Ms Y’s evidence as being corroborative of the mother’s evidence that she gave the father due warning and prior notice of her travel plans.
154.I asked the mother why she drove to her place of employment on the day of her departure, parked the car and left the keys at the reception. She said “because the father did not want to drive us to the airport”. I do not accept that was the case. I am not satisfied that the mother ever told or even hinted of her departure plans to the father and that, when he placed the children in their car seats on the morning of 12 May 2011 and kissed them goodbye, he had no idea that the mother was about to take them out of the country.
155.Having listened to all of the evidence and had the valuable opportunity to observe both parents as they gave evidence, I am satisfied that the mother’s allegations as to the father’s consent are nothing more than a recent and transparent invention.
156.I am satisfied that there is no substance at all to the mother’s case that the father consented to her removal of the children from the United Kingdom on 12 May 2011. In the event that I had been satisfied that the children were habitually resident in the United Kingdom, no exception to mandatory return would have been available to the mother based on consent.
Exercise of discretion against mandatory return
157.I turn now to the manner in which I would have exercised my discretion to refuse to return the children in the event that either exception under reg 16(3)(ii) or reg 16(3)(b) had been made out.
158.The applicant SCA contended that if the discretion arose I should not exercise it. The mother contended that I should exercise it and thereby allow the two children to stay in Australia. Ultimately, the ICL did not state a conclusion but counsel did put a forceful submission or plea which was sympathetic to the mother’s position.
159.In the High Court cases of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (supra), Gaudron, Gummow and Hayne JJ said at par [40]:
40.… if, on the evidence, one of the ... conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
160.I have already discussed the conditions sought by the mother and those offered by the father, albeit through the SCA. I discussed the appropriate breadth of conditions in SCA & Daker [2008] FamCA 1271 par [66] to [87]. In my view, save for there needing to be some access by the mother to a motor vehicle, the conditions offered by the father were well thought out and adequate to tide the mother over for the period between the return of the children and the first date before a court of competent jurisdiction in the United Kingdom. The provision of three months rent, or the equivalent may, at first blush, appear to exceed what is reasonably required to support the immediate wellbeing of the mother and children. However, I am satisfied on the evidence that rental accommodation would be difficult to come by and much effort would need to be devoted by the mother to a heavy schedule of court commitments if the approximate timetable suggested by the Hague Network Judge in the United Kingdom was to be observed.
161.The Convention and the Regulations do not specify the factors to be taken into account in the exercise of the discretion to refuse to return children which arises once an exception to return is made out[36].
[36] Kay J in State Central Authority and DB [2002] FamCA 804 as subsequently endorsed by the Full Court in HZ v State Central Authority [2006] FamCA 466, the Full Court there comprising of Kay, Coleman and Warnick JJ.
162.In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at par [574] which were:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.
163.I will deal with such of those factors as are relevant to this case. I am satisfied that the United Kingdom is a suitable jurisdiction, as is Australia, in which to decide parenting matters pertaining to T and J. There are likely to be more lay witnesses in the United Kingdom than in Australia. Doubtless the mother would seek to rely on evidence from a psychologist or psychiatrist about her mental health. She has no such practitioner or expert witness at the moment and would probably retain them wherever she was living prior to the trial.
164.I cannot predict the outcome of the substantive proceedings, save that, I am confident that it would be arrived at, in the United Kingdom, with the best interests of the children being a paramount consideration. There appears to me to be some real issues about the mother’s capacity to parent. She was a poor witness. I could not believe much of her evidence when it conflicted with the father’s evidence. A poor witness does not necessarily make a poor parent but there does appear to be a genuine parenting case that will require determination somewhere.
165.It is fairly clear that the mother found herself in the United Kingdom surrounded by circumstances with which she was ill-equipped to deal and was driven to desperate and ill-considered stratagems and actions. Then, before this court, she gives evidence about the father’s dishonesty and deception and says that she had told the father of her precise plans to depart. The evidence about having given the father prior notice of her intention to remove the children from the United Kingdom, has all the hallmarks of events which are reconstructed or invented to achieve, somewhat desperately, her goal of staying in Australia. Needless to say, where the parents’ evidence conflicted, I have arrived at my decision based on an acceptance of the father’s evidence in preference to the evidence of the mother.
166.There is no suggestion of any criminal charges or civil penalties which would await the mother in the event of her return.
167.There was no evidence as to the emotional impact on the children of an immediate return to the United Kingdom. I am satisfied that the mother would find it very hard and that her capacity to care for the children would be somewhat diminished. Against that, one must balance that the children would have the benefit of spending time or living with the father.
168.I would, of course, consider the extent to which the purpose and underlying philosophy of the Hague Convention would be frustrated if a return order were refused. Leaving to one side the parts of the 1980 Convention which deal with rights of access, the philosophy of the 1980 Convention is to protect children from the harmful effects of wrongful removal or retention across international borders by depriving the abductor’s actions any practical or juridical consequences. It is not the philosophy of the 1980 Convention to capture all abductions. The concept of wrongfulness defines the children and the relationships which the 1980 Convention is intended to protect. For instance, the child must be habitually resident in another Convention country and the requesting parent must have been exercising rights of custody immediately before the wrongful retention or removal. Finally, only if one or more of the exceptions to mandatory return apply does the court have a discretion to not return the children. It is only in the exercise of that discretion that the best interests principles have any bearing.
169.I enter into this discussion having already decided to dismiss the application of the SCA on the basis that the children were not habitually resident in the United Kingdom at the relevant time. Viewing the facts of this case through the perspective of the philosophy underlying the Convention, I am comfortable with the decision.
170.For reasons set out above, I do not regard the mother or, through her, the children as having integrated into life in the United Kingdom to an extent which requires that the children be returned there for the courts to decide future parenting arrangements. In the context of the family’s relatively recent move from a settled existence in Australia, it is not sufficient that the father was entirely comfortable with the United Kingdom as the family’s new home. At first blush, it may appear odd that the party who succeeds in this proceeding is the parent whose evidence I have, at worst, found to be fabricated and, at best, found to be not based in fact. However, this is a case about forum which rests first, and foremost, on ascertaining where the children were habitually resident immediately before they were removed.
171.It is not possible for me to predict whether I would have exercised a discretion to allow the children to remain in Australia because, in order for that discretion to be enlivened, the facts would have been very different from the facts as I have found them to be in this case.
Conclusion
172.The application of the SCA is to be dismissed. All orders which were made incidental to, and pending the determination of, that application will be discharged. The passports of the children will be returned to the mother. In the event that the mother or father institute parenting proceedings within the next two years, they may be listed before me for directions if I am reasonably available. That does not mean those proceedings must be listed before me, just that they can be.
I certify that the preceding one hundred and seventy two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.
Associate:
Date: 16 August 2011
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