State Central Authority and Evans

[2008] FamCA 859

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & EVANS [2008] FamCA 859

FAMILY LAW – CHILD ABDUCTION – Jurisdiction under s 111B of Family Law Act 1975 (Cth) and regulation 16 of Family Law (Child Abduction Convention) Regulations 1986 (Cth) to make a return order - Whether the retention of the child from New Zealand in Australia was wrongful - Whether the child was habitually resident in New Zealand immediately before the alleged wrongful retention

Family Law Act 1975 s 111B

Family Law (Child Abduction Convention) Regulations 1986 regs 10, 14, 16(1), 16(1A), Schedule 2

B v H (Habitual Residence:  Wardship) [2002] 1 Fam Law R 1008
Cooper v Casey (1995) FLC 92-575
Delvoye v Lee F.3d 330 (2003)
Department of Health and Community Services v Casse (1995) FLC 92-629
DW & Director-General, Department of Child Safety (2006) FLC 93-255
Friedrich v Friedrich 983 F2D 1396
Hanbury-Brown and Hanbury Brown:  Director General of Community Services (1996) FLC 92-671

In Re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562

Panaytodies v Panayotides (1997) FLC 92-733
Re B (Minor) (Abduction) (No 2) [1993] 1 FLR 993
Re F (a Minor) (Child Abduction) (1992) 1 FLR 548

Re K (Abduction:  Consent) [1998] 1 FCR 311

State Central Authority v McCall (1995) FLC 92-552

APPLICANT: State Central Authority

RESPONDENT: Ms Evans

FILE NUMBER: MLF 8752 of 2007

DATE DELIVERED: 28 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 5 November 2007, written submissions filed, judgment reserved 13 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Buchanan

SOLICITOR FOR THE APPLICANT: Victorian Government Solicitor

COUNSEL FOR THE RESPONDENT: Ms Vohra

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

Orders

1. The application of the State Central Authority filed 3 August 2007 for the return of the child, born … December 2006 to New Zealand be and is hereby dismissed.

2. Paragraphs 2, 3 and 4 of the order made 8 August 2007 be and are hereby discharged.

3. The Court requests that the Australian Federal Police remove the name of the child, male, born … December 2006 from the Airport Watch List at all points of international arrivals and departures in Australia.

4. The solicitor for the respondent mother be responsible for effecting service of a sealed copy of this order upon the proper officer of the Australian Federal Police who is requested to give operation thereto.

5. The registrar of the Family Court of Australia at Melbourne (or the registry Manager) forthwith return to the mother any passport(s) for the mother and/or the said child presently held in accordance with paragraph 3 of the order of this Court made 8 August 2007.

6. I otherwise dismiss all extant applications and the amended response of the respondent filed 6 September 2007

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority v Evans is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 8752 of 2007

STATE CENTRAL AUTHORITY

Applicant

And

MS EVANS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. The State Central Authority seeks the return from Australia to New Zealand of the child born in December 2006.

2. The child first came to Australia with his mother, Ms Evans, on 2 February 2007, only two months after his birth, and they remained in Australia for a further month and a half. From mid-March 2007 the mother and the child spent alternating months in New Zealand and Australia until June 2007, at which time the State Central Authority (SCA) asserts that the child was wrongfully retained in Australia by his mother.

3. The mother disputes that the retention was wrongful, asserting in response that the child was not habitually resident in New Zealand immediately before his alleged wrongful retention on 29 June 2007.

4. Before dealing with this issue, I will set out the relevant background, the material relied upon, and the framework of the Family Law (Child Abduction Convention) Regulations 1986.

BACKGROUND  

1. The father was born in Ireland in July 1975. He is 32 years of age.  The mother was born in Australia in October 1981 and is 26 years of age. They met in Australia in November 2002 and began a relationship here three months later. The father works in information technology and the mother in health services. The father moved from Australia to New Zealand soon after his Australian work visa expired in November 2003.  The parents made a number of Trans Tasman trips over the next fourteen months, during which time the father commenced work at M1 in New Zealand and the mother undertook a postgraduate health course in Australia.

2. The mother moved to New Zealand in March 2005, and the mother and father began living together as a couple on a continuous basis at this time. Shortly thereafter, the father applied for a permanent residency visa in New Zealand. 

3. Having completed her postgraduate health course in Australia in February 2005, the mother commenced employment at a new Zealand Hospital in May 2005.  In the mother’s affidavit affirmed 29 August 2007 at paragraph 3(g) she states: 

   In March 2005 I moved to New Zealand with the intention of working as a [nurse] for a period of time.  I had heard that New Zealand has a very good [nursing] system which gave [nurses] more autonomy than they have in Australia.  I would get good experience and further my career while at the same time see if my relationship with [the father] developed.  I did not intend to stay in New Zealand permanently.  We never discussed settling in New Zealand permanently, although we discussed travelling together. 

4. At about the same time, the father applied for a renewal of his New Zealand work visa. 

5. The mother fell pregnant unexpectedly with the child in March 2006, during a period when the parents were in dispute as to their future travel and residence plans. At about this time the parents discussed many possibilities including remaining in New Zealand, or relocating to Ireland, Australia or Thailand.

6. The father was made redundant by his New Zealand employer in May 2006 and the parties jointly purchased real property (a house and land) in Wellington. The mother already owned a residential property in Melbourne jointly with her mother and she retained her interest in that property.

7. The different light that each parent now seeks to shine on historical facts is nowhere more apparent than in relation to this purchase. In his affidavit sworn and filed 12 September 2007, the father states, at paragraph 15:

   I agree that we bought a home in [K] while [the mother] was pregnant. This was after our discussions that since we have decided to live in NZ permanently, we might as well buy a property and settle in.

8. In paragraphs 14 – 17 of her responding affidavit affirmed and filed 20 September 2007, the mother asserts:

   …I say that the house at [K] in Wellington, was not bought with the aim of settling in New Zealand in the long term… I say we both justified buying property with the fact that we liked the house, that rent was a useless expenditure, that the market was apparently going up and so we could always sell it, and that [the father] wanted some collateral.

9. Shortly before the child’s birth in December 2006, the mother purchased tickets for herself and the (then unborn) child to travel to Australia on 2 February 2007, a trip that the father states that he consented to, but only as a holiday. The mother asserts that her departure in February followed a period of unhappiness in the relationship during which she had threatened to leave with the child.

10. On 15 January 2007, the mother sought legal advice from a volunteer lawyer working at the Wellington Women’s Refuge named Ms C.  Unbeknown to the mother at the time, and up until the hearing before me, Ms C was an employee of the firm Margaret Powell and Wendy Davis of Wellington. In the Form 2 application by which the proceedings before me were initiated, Ms Powell of that firm is shown at page 3 as the legal adviser for the father, and in an affidavit by Ms Powell that is annexed to the SCA’s application she deposes: “I have been instructed by the New Zealand Central Authority to act for [the father].” The fact that some weeks before her departure from New Zealand, the mother had consulted a lawyer in the firm now representing the father (although not representing the State Central Authority in Australia) gave rise to an issue of whether there was a relevant conflict of interest in relation to the proceedings before me on the part of Ms Powell’s firm and through that firm to the Victorian Government Solicitor (“VGS”) on the basis that Ms Powell’s firm would be obliged to make all matters within its knowledge available to the VGS, and I will later set out how that issue was resolved, at least temporarily, and the matter was able to proceed.

11. Two weeks after the mother and the child’s arrival in Australia, the mother informed the father by telephone of her intention to remain in Australia and that she wanted a trial separation.  The following day, the father arrived in Australia and both parents saw a psychologist, Ms Z.  During the father’s visit to Australia, the parties reached an agreement, the terms of which they now dispute.  It is common ground that the father acknowledged his awareness of his legal rights regarding the child’s removal from New Zealand.  In the father’s affidavit sworn 12 September 2007 at paragraph 25 he states:

    I also did not say anything about kidnapping but I did raise child abduction with her, referring to the Hague Convention.

12. It is also common ground that the mother promised to return to New Zealand, but whether the promise was to return for a visit only (the mother’s version) or to live (the father’s version) is not something that I can determine. The mother’s version gains some support from an affidavit by Ms Z that was filed and relied on by the mother without objection. In that affidavit affirmed 8 September 2007, the psychologist states at paragraph 3:   

    During the session he [the father] pleaded with [the mother] that she and [the child] return to New Zealand to live.  He promised to make any changes she wanted.  [The mother] did not agree in the session to return to New Zealand permanently.

13. There does not appear to have been any dispute that the child would remain in his mother’s care, and the mother’s conduct in the months that followed is consistent with her version of what she said that she would do, that is, to visit New Zealand but not to return with the intention of living there permanently.

14. Ms Z also deposes at paragraph 4:

    During the session [the mother] asked [the father] to apply for New Zealand citizenship so that he could live and work in Australia.  [The father] did not agree to this in the session.

15. The father’s visit to Melbourne and the consultation with the psychologist took place on 17 February 2007.    

16. Upon his return to New Zealand on 18 February 2007, the father applied for two employment positions in Australia, with M1 and M2. It appears that he also applied for New Zealand citizenship at about this time. Although the father was successful in both these applications for positions in Australia, he rejected these offers based on legal advice from immigration lawyers in Australia and New Zealand, which was obtained by the mother and the maternal grandmother, Ms B.  The father was advised that acceptance of these positions and his consequent employment in Australia could jeopardize his application for New Zealand citizenship. 

17. On obtaining New Zealand citizenship, the father would, as asserted by the mother in the session with Ms Z, be in a position to avail himself of the longstanding Trans-Tasman arrangements between Australia and New Zealand. In this context, the mother in her affidavit affirmed 20 September 2007 states at paragraph 50:

    If [the father] only planned to base himself in New Zealand, he only needed permanent residency with an indefinite returning resident’s visa.  He had no interest in voting in New Zealand, or applying for New Zealand government jobs, he was after the Trans-Tasman rights to work and reside in Australia.  There is no way [the father] would have put himself through the rigmarole or expense of applying for citizenship simply for the sake of New Zealand itself, when he had permanent residency already. 

18. Following the father’s visit to Australia in mid February 2007, the mother travelled with the child to New Zealand in mid March 2007. In advance of this travel, the mother instructed her solicitors at the time, Mahon & Treby, to draft a letter that she sent to the father shortly before she left requesting his consent to the child living with her and to a proposed, defined four week trip to New Zealand.  The letter, a copy of which is annexed to the mother’s affidavit affirmed 29 August 2007, itself an annexure to the mother’s amended response filed 6 September 2007, read as follows:

    This letter is to confirm the agreement which we are instructed has been reached in relation to [the child].  We note that it is agreed that [the child] will reside with our client.  Our client intends to travel to New Zealand for a period of approximately four weeks.  It is agreed that she will be free to live at a location chosen by her, and intends to return to Australia after the four week period commencing on Friday the 16^th March, 2007. 

    Could you please acknowledge your agreement to these arrangements by signing the attached copy of this letter and returning same to this office.

19. On 16 March 2007, the parents’ joint property in Wellington was sold. The parents differ in their accounts of why this took place, but there is no doubt that it was sold, and the sale settled on 12 April.  In his affidavit sworn 12 November 2007, Mr H, the property lawyer who acted on behalf of the parents in the sale of their property, deposes that as a result of an agreement between the parents, he was instructed to deposit the proceeds of sale into two separate bank accounts, in circumstances where he recalls that the parties conveyed to him at the time that they were splitting up. The sum of $20,000.00 was deposited into an Australian bank account in the mother’s name and the balance ($23,053.24) into the parent’s joint account in New Zealand.  The details of the mother’s Australian bank account were forwarded to Mr H’s office by the father.  It appears to be common ground that approximately $3,000 of the money paid into the joint account was paid by the father from the parent’s joint bank account in reduction of the debt then owing on their joint credit card.

20. In an affidavit relied on by the mother, Mr S, the agent who handled the sale on behalf of the parents, states that it is his recollection of conversations with both parents around the time of the sale “that the reason for the sale … was that [the father] and [the mother] were moving to Melbourne, Australia.”

21. Even though the father had not signed the letter prepared by her solicitors, the mother and the child travelled to New Zealand for a period of four weeks commencing on 17 March 2007. They travelled on return tickets.  There is dispute between the parents as to the precise nature of their relationship during that time, however it is common ground that they (and the child) shared accommodation during this period, including 4 nights at a hotel in Wellington close to the end of the visit, and spent the last night in a recently rented flat that was to become the father’s residence thereafter, and at which the mother and the child stayed on subsequent visits. 

22. The mother and the child returned to Australia on 17 April 2007, to the property owned by the mother and her mother in the Melbourne suburb of N.  The father states that he consented to their departure from New Zealand, but again, only as a holiday.

23. About one month later, on 15 May 2007, the mother and the child again travelled to New Zealand for a period of over four weeks on return tickets from Australia.  During this time, the parents and the child were in Queenstown in the South Island with a friend of the father’s for one to two weeks. The father commenced a four month employment contract with D Limited in Wellington. Once again there is dispute between the parents as to the nature of their relationship during that four week period, but they did share accommodation. 

24. The mother and the child returned to the mother’s home in Australia on 20 June 2007, a trip that the father again states he consented to, but only as a holiday that was intended to last for two to three weeks.

25. On 29 June 2007, the father received a letter from the mother which advised him that their relationship was at an end, and inferentially, that she intended to continue to reside in Australia with the child, who was then nearly six months old.  The letter, annexed to the father’s affidavit sworn 9 July 2007 and annexed to the SCA’s Form 2 application filed 3 August 2007, read as follows:

    I have come to the very clear conclusion that we should separate. Please do not try to convince me otherwise.  I am not happy in my relationship to you. 

    I acknowledge certain kindness on your part, for that that I give my thanks, and hope for an amicable spilt. 

    I am giving this to you in writing for two reasons – I do not feel heard or respected when I speak to you – I feel berated/blackmailed and ‘talked down,’ and secondly I do not feel safe voicing this in person, I cannot live in such environment, nor have the child do so either. 

    We have proved unable to come to balanced agreements in times of conflict. 

    I am going away for about a week, but will have any post forwarded, and be checking my emails regularly.  We can continue to communicate in writing.

    Please seek whatever help and support you need.  So many people love and care about you. 

26. Following the receipt of this letter, the father took action, and as a result the State Central Authority filed an application in this court on 3 August 2007 pursuant to the Family Law (Child Abduction Convention) Regulations 1986,  asserting that the mother’s retention of the child in New Zealand from 29 June 2007 is wrongful. The mother, in her amended response filed 6 September 2007 seeks the dismissal of the SCA’s application, and by way of cross-application, seeks dismissal of the interim orders made on 8 August 2007 (before the mother was served), and also seeks certain parenting orders in relation to the child. I will return to these aspects of her response at a later stage.

27. In July 2007, the father together with the paternal grandparents (who reside in Ireland), travelled to Australia to spend time with the child.  This was the first meeting between the paternal grandparents and the child. 

MATERIAL RELIED UPON

1. The applicant did not provide a list of documents being relied upon, however the following documents were filed on behalf of the State Central Authority and I have treated them as all being relied upon.

   ·The Form 2 application sworn 2 August 2007, with attachments including the father’s affidavit sworn 9 July 2007;

   ·Further affidavits by the father sworn 12 September 2007 and 26 September 2007;  

   ·The affidavit of Ms O, a friend of the father’s, sworn 11 September 2007;

   ·The affidavit of Ms A, a colleague and friend  of the father’s, affirmed 26 September 2007;

   ·The affidavit of Ms F, a colleague and friend  of the father’s,   sworn 27 September 2007;

   ·The affidavit of Leang Kim Thai, a solicitor with the Victorian Government Solicitor which acts for the SCA in this matter, affirmed 12 October 2007, with the father’s affidavit sworn 12 October 2007 as an attachment;

   ·The affidavit of Leang Kim Thai affirmed 29 October 2007, with the father’s affidavit sworn 26 October 2007 as an attachment; and

   ·The affidavit of Leang Kim Thai affirmed 27 November 2007, with the father’s affidavit sworn 23 November 2007 as an attachment.

1. The respondent relied upon the following documents:

   ·The Form 2A answer and cross-application of the mother sworn 5 September 2007 , with attachments including the mother’s affidavit affirmed 29 August 2007;

   ·Further affidavits by the mother affirmed 20 September 2007 and 19 October 2007;

   ·The affidavit of psychologist Ms Z affirmed 18 September 2007;

   ·The affidavit of child welfare nurse Ms E sworn 19 September 2007;

   ·The affidavit of Ms T, a friend of the mother’s, sworn 20 September 2007;

   ·The affidavit of the maternal grandmother, Ms B sworn 20 September 2007;

   ·The affidavit of Luke Seivers (a solicitor in the firm acting for the mother in these proceedings) affirmed 19 October 2007 with the affidavit of Mr S, the real estate agent involved in the sale of the parent’s joint property,  sworn 16 October 2007 as an attachment; and

   ·The affidavit of Mr H sworn 12 November 2007.

2. The matter was listed before me on 5 November 2005. Directions were made that day for the filing of further material. The mother’s Counsel filed written submissions on 21 November 2007 and 10 December 2007, whilst the State Central Authority filed written submissions on 21 November 2007. At the hearing on 5 November 2007 the parties agreed that once the further material was filed, I should determine the matter ‘on the papers’.  Being satisfied that the parties had each filed their further documents and were not seeking a further oral hearing, I reserved my decision on 13 December 2007.

3. I have already made reference to the fact that the solicitor who was shown in the initiating application as the father’s legal adviser, and who swore an affidavit as to the relevant law that was relied on by the New Zealand Central Authority, was a principal of the firm that employed the lawyer whom the mother had consulted for advice at the Wellington women’s refuge in January 2007. The mother had known the solicitor whom she saw only by her first name, but, at the hearing before me, the mother became aware that that person was an employee of the firm Margaret Powell and Wendy Davis. Counsel for the mother stated that her instructions were that the mother had given this person instructions about her relationship with the father and had sought and received advice in relation to issues concerning the child’s future care, and her forthcoming travel to Australia with the child.

4. Whilst these instructions caused the mother’s counsel to foreshadow an application to raise conflict of interest issues, that application was not pursued. The matters raised and considered at the hearing before me included:

   The SCA asserted that there was no conflict on its part, because the firm in question was not acting for the SCA in Victoria, which had instructed the Victorian Government Solicitor. (It was the State Central authority in New Zealand that Ms Powell deposed had instructed her to act);

   Counsel for the SCA further asserted that on instructions obtained from New Zealand, there was no file or record in the firm Margaret Powell and Wendy Davis of the consultation between Ms C and the mother;

   The mother was not alleging that any fact or matter contained in the material relied on by the SCA represented a breach of any confidences that she had conveyed to Ms C when she consulted her at the refuge; and

   The parties before me were in agreement that the matter should be dealt with on the papers, as usually happens in proceedings under the Convention: see paragraph 43, below.

5. The matter was therefore left on the basis of the mother reserving her rights to raise the issue again if any document subsequently filed by or on behalf of the SCA should give rise to a complaint on her part of breach of confidence and a notation to the order that I made that day made it clear that she reserved her right to raise the issue in any later proceedings. The notation is in these terms:

   AND THE COURT NOTES THAT the mother has foreshadowed an application to restrain the father from engaging Margaret Powell and Wendy Davis to act for him, in any proceedings in any Court that may relate to parenting issues between the parties in respect of their child […] born […] December 2006 but does not make such application in respect of this Hague Convention issue which is to be dealt with on the papers.

THE FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986

1. The Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) operate pursuant to section 111B of the Family Law Act 1975 and give legislative force to Australia’s obligations under the Hague Convention on the Civil Aspects of International Abduction (“the Convention”). The Convention was signed in The Hague on 25 October 1980 and entered into force in Australia on 1 January 1987. Pursuant to regulation 10 and specified in Schedule 2, the Convention entered in force between Australia and New Zealand on 1 June 1992.

2. The objectives of the Convention are articulated in Article 1:

   a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

   b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

3. In Re K (Abduction:  Consent) [1998] 1 FCR 311 at [320] Hale J (as she then was) observed the underlying purpose of the Convention:

   The final thing that I have to weigh in the balance is the purpose of the convention.  This is something that the courts attach the greatest possible importance.  We all want children to be returned as soon as possible to the place from which they have been wrongfully removed.  The reasons why the conventions exist to secure this are partly that is bad for children to be uprooted from one jurisdiction to another and partly to fulfil the obvious proposition that if there is a dispute between parents as to the future of their child it is better dealt with in the courts of the country where the child has hitherto been habitually resident because that is where the best information lies.

4. Regulation 14 refers to applications made to the court and relevantly provides:

   (1)If a child is removed from a convention county to, or retained in, Australia:

   (a) the responsible Central Authority may apply to the court …for …. :

   (i) a return order for the child; 

5. Regulation 16 imposes the obligation on Australian courts to make a return order if certain threshold issues are satisfied and relevantly provides:

   (1)If:

   (a)      an application for a return order for a child is made; and

   (b)the application… is filed within one year after the child’s removal or retention; and

   (c)the responsible Central Authority… satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);

   the court must, subject to sub-regulation (3), make the order.

   (1A) For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:

   (a)      the child was under 16; and

   (b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

   (c)the person …  seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

   (d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)at the time of the child's removal or retention, the person …:

   (i)   was actually exercising the rights of custody (either jointly or alone); or

   (ii)  would have exercised those rights if the child had not been removed or retained.

   …

6. The Regulations deal with the wrongful “removal” and wrongful “retention” of children in breach of rights of custody. These two concepts are quite distinct, as ‘removal’ refers to the physical movement of a child from a Convention country whilst ‘retention’ refers to withholding of a child from a Convention country: Hanbury-Brown and Hanbury Brown: Director General of Community Services (1996) FLC 92-671 at 82,965. The SCA’s application in this case raises an allegation of wrongful retention.

7. As the SCA acknowledged in its written submissions, the onus of establishing the matters set out regulation 16(1A) lies with the applicant, the State Central Authority.

8. In Panaytodies v Panayotides (1997) FLC 92-733 at 83,897, the Full Court (Fogarty and Baker JJ, with whom Finn J agreed) cited with approval the following remarks made by Jordan J at first instance regarding the process by which the court hears these types of matters:

   The first thing to observe is that there is much conflict in the evidence.  These are summary proceedings and issues must be determined on the papers.  This often presents the Court with difficulties.  It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.

9. As to relevant subparagraphs of Regulations 16(1) and (1A), there is no doubt that the child is under 16 years of age, and the application for the child’s return to New Zealand was filed on 3 August 2007, which is within twelve months of his retention in Australia. I must now turn to the contested issue of whether the child was habitually resident in New Zealand immediately before his retention. 

THE HABITUAL RESIDENCE ISSUE

1. The concept of ‘habitual residence’ is not defined in the Regulations or the Convention and has long been the subject of judicial consideration.

2. The Full Court (Finn and May JJ) in DW & Director-General, Department of Child Safety (2006) FLC 93-255 at 80,328 - 329 summarised as follows the English authorities on habitual residence which have been relied upon by Australian courts:

   27.It was accepted by the English Court of Appeal in In Re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 571-572 that habitual residence for the purposes of the Convention is a question of fact; that habitual residence must have an element of voluntariness and of residence for settled purposes; and that the intention (with respect to habitual residence) of a very young child must be those of its mother in a situation where the mother was unmarried and where the father had no rights in relation to the child. But it was also recognised by Lord Donaldson who delivered the principal judgment in the Court of Appeal that (at 572):

   …. But, in the ordinary case of a married couple, in my judgment, it would not be possible for one parent unilaterally to terminate the habitual residence of the child by removing the child from the jurisdiction wrongfully and in breach of the other parent’s rights.  Accordingly this decision cannot be applied to the ordinary case of the married couple.

   28.The decision of the Court of Appeal in Re J was the subject of a further appeal to the House of Lords.  In dismissing that further appeal, Lord Brandon of Oakbrook, with whom the other members of the House of Lords agreed, made the following points concerning the expression “habitually resident” in the context of the Convention (at 578-579):

   … The first point is that the expression “habitually resident,” as used in article 3 of the Convention, is nowhere defined.  It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains.  The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case.  The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and who subsequently becoming habitually resident in country B.  A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead.  Such a person cannot, however, become habitually resident in country B in a single day.  An appreciable period of time and a settled intention will be necessary to enable him or her to become so.  During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.  The fourth point is that, where a child of J’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.

   29.Subsequently in the decision of the Court of Appeal in Re F (a Minor) (Child Abduction) [1992] 1 FLR 548, Butler-Sloss LJ quoted the passage which we have just quoted from Lord Brandon’s speech in Re J in support of her observation that (at 551):

   A young child cannot acquire habitual residence in isolation from those who care for him.  While [the subject child in Re F] lived with both parents, he shared their common habitual residence or lack of it.

   30.Later in her judgment, having endorsed the submission of Counsel for the Central Authority that “it is important for the successful operation of the Convention that a child should have, where possible, a habitual residence, otherwise he cannot be protected from abduction by a parent from the country where he was last residing,” Butler-Sloss LJ went on to express her agreement with the passage we have quoted above (in paragraph 27) from Lord Donaldson’s judgment in the Court of Appeal in Re J, and to observe (at 556):

   While parents live together, the child is habitually resident with both parents.  When the parents separate the child’s habitual residence may change and will, in due course, to follow that of the principal carer with whom he resides.

3. The Court has adopted a different approach when determining the habitual residence of young children.  English authority has propounded that a child cannot acquire habitual residence before birth:  B v H (Habitual Residence:  Wardship) [2002] 1 Fam Law R 1008.  In delivering the principal judgement of the Full Court in Cooper v Casey (1995) FLC 92-575 at 81,695, Nicholson CJ (with whom Kay and Graham JJ agreed), cited with approval three principles laid down by Waite J in Re B (Minor) (Abduction) (No 2) [1993] 1 FLR 993 at 995, which emerged from the English authorities of Re J and Re F:

   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 parent can change it without the express or tacit consent of the other or an 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 of long duration.

   All that the law requires for a `settled purpose' is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

   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. The House of Lords in Re J, sub nom C v S (above) refrained, no doubt advisedly, from giving any indication as to what an `appreciable period' would be. Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F (above) the Court of Appeal approved a judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.

4. His Honour also cited with approval the judgement of the trial judge, Ellis J, who had quoted the following passage from the majority of the United States Court of Appeal, Sixth Circuit in Friedrich v Friedrich 983 F2D 1396, decided 22 January 1993:

   We agree that habitual residence must not be confused with domicile.  To determine habitual residence the court must focus on the child not the parents and examine past experience not future intentions.

   ...

   A person can have only one habitual residence.  On its face habitual residence pertains to customary residence prior to the removal.  The court must look back in time not forward.

5. In Panayotides v Panayotides at 83,897, the Full Court cited with approval the following passage from the trial judge, Jordan J:

   The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:

   (1) the expression “habitually resident” is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990) 3 WLR 949);

   (2) the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);

   (3) the habitual residence of a child whose parents reside together is the habitual residence of those parents (see, Re B (minor) (1993) 1 FLR 993);

   (4) it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (see, State Central Authority v McCall (1995) FLC 92-552);

   (5) habitual residence refers to the parents’ habitual abode in a 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.’

   (See, re B (minor) (supra) p.995).

   I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:

   ‘All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’

   I do not accept an interpretation of the proposition advanced in In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.

6. The possibility of a child having no place of habitual residence was raised by Nicholson CJ in Cooper v Casey at 81,696, whereby his Honour quoted the following passage of Butler-Sloss LJ in Re F at 556:

   ….we should not strain to find a lack of habitual residence, where on a broad canvas, the child has settled in a particular country.

7. Nicholson CJ went on to conclude at 81,696:

   As was pointed out during the course of argument in the present case, the making of a finding that a child has no habitual residence could easily operate to defeat the purpose of the Convention and leave children open to the possibility of repeated abductions by both parents.

1. In DW v Director-General, Department of Child Safety the majority of the Full Court in their reasons for judgment at 80,334 - 335 said:

   … it will be recalled that the second of the principles enunciated by Waite J and adopted by Nicholson CJ refers to “the parents’ shared intentions”.  We regard the word “shared” as having the same meaning as “same” or “common”.  That is, that the parties in question had the same or a common intention about their future living arrangements, even though – life being what it is – they may not have had a specific discussion and/or reached a clear agreement regarding their future living arrangements.

   ….

   [It] would clearly be wrong, to conclude that a person who has taken up residence in a particular country to see how a relationship with a resident of the country would “work out” either had a settled intention to take up long term residence in that country (which in any event Warnick J found the mother did not have) or had adopted an abode in that country for settled purposes as part of the regular order of his or her life, and was accordingly  “habitually resident” in that country.

   …..

   We appreciate that our decision may well be said to deny the child the benefit of the Convention – a result which Butler-Sloss LJ in Re F and Nicholson CJ in Cooper v Casey suggested that courts should try to avoid.  However we are of the view that the interests of children generally could well be adversely affected if the courts too readily find that a parent of a child who attempts a reconciliation in a foreign country with the other parent in order to try to create for the child a family consisting of both its parents, has, together with the child, become “habitually resident” in that foreign country.

2. This issue also arose in Delvoye v Lee F.3d 330, a case decided by the United State Court of Appeal for the Third Circuit on 20 May 2003.  In that case the child was held not be a habitual resident of Belgium, as the mother had travelled there merely to give birth on the father’s insistence.  The parents did not have a shared or settled intention to habitually reside in Belgium which was evidenced by the mother travelling to Belgium with limited belongings and her failure to seek an extension of her temporary three month visa on its expiration. Delivering the leading judgement, Senior District Judge Schwarzer observed:

   Of course, the mere fact that conflict has developed between the parents does not ipso facto disestablish a child’s habitual residence, once it has come into existence.  But where the conflict is contemporaneous with the birth of the child, no habitual residence may ever come into existence.

3. I now turn to consider the child’s habitual residence. This case will not come within the scope of the Regulations if the child is found not to have been habitually residing in New Zealand immediately before his retention in Australia on 29 June 2007. The father asserts through the SCA that the child was habitually residing in New Zealand at the relevant time and relies on the case of Panayotides v Panayotides (cited in paragraph 42, above) for the proposition that one parent cannot unilaterally determine a child’s habitual residence by removing that child 

4. The mother’s Counsel relied upon the decision of Kay J sitting at first instance in Department of Health & Community Services v Casse (1995) FLC 92-629. In his reasons for judgment, his Honour quoted the passage from Nicholson CJ’s judgement in Cooper v Casey, which I have quoted in paragraph 49, above.  The mother’s case is that the child was a habitual resident of Australia at the relevant time because the parents did not have a settled intention to habitually reside in New Zealand.  Prior to the alleged date of wrongful retention, the child’s periods of residence in New Zealand totalled four months, compared to three months in Australia.  It is inappropriate however to assess habitual residence by merely examining the time the child spent in each country.

5. On the basis that the child is a young child, it is necessary to examine the first principle enunciated by Waite J and adopted by Nicholson CJ. Accordingly, I need to look to the habitual residence of the two parents with whom the child has been living. 

6. It is not in dispute that the child resided with both parents in New Zealand during the following periods:  from birth until 2 February 2007, 17 March 2007 to 16 April 2007 and 15 May 2007 to 20 June 2007, with the latter period including travel to Queenstown, New Zealand.  The child might also be said to have resided with both parents in Australia during the father’s visit on 17 and 18 February 2007.

7. During the relevant period immediately before the child’s retention, he resided with his mother for nine days (in Melbourne) and for just over one month with both parents in New Zealand.  

8. I must now turn to the second principle enunciated by Waite J and adopted by Nicholson CJ which refers to “the parent’s shared intentions.”  The term “shared intentions” was interpreted by the majority of the Full Court in DW & Director-General, Department of Child Safety at 80,334 to mean the parent’s “common” intentions.

9. Both the first and second principles enunciated by Waite J and adopted by Nicholson CJ exemplify that a young child does not have the requisite intention to form a habitual residence separate to that of its parents.  This approach has been criticized by judicial commentators for focussing on the intentions of the parents rather than those of the child and for detracting from the factual matrix involved in determining the habitual residence of a child - see Beaumont, R and McEleavy, P, The Hague Convention on International Child Abduction, Oxford University Press:  New York. 1999 at 92.

10. Since his visit to Australia in February 2007, the father in this case has sought to obtain New Zealand citizenship.  This would permit him to take advantage of the Trans-Tasman arrangement and thus remain and work in Australia or New Zealand indefinitely. 

11. Relocation to either Australia or Ireland was always in the minds of the parties as these were the parents’ respective countries of origin.  The father in his affidavit sworn 26 October 2007 and filed 30 October 2007 states, at paragraph 3:

    We talked about moving to Melbourne for a while (as did we talk about moving to Ireland for a while too) as a family and not separately.

12. In respect of a potential relocation to Ireland, the father swore in paragraph 50    of his affidavit sworn and filed 12 September 2007: 

    I agree that we did have a discussion about going to Ireland because of my father’s health.  We had talked about living at a number of places.  We had looked at going to Ireland and I accept that [the mother] was not happy to do so.  We did not talk about a permanent return to Australia though.

13. The mother’s affidavit affirmed 29 August 2007 at paragraph 19 reads as follows:

    I would not agree to live in Ireland.  I was determined to return to Australia and told [the father] so. I said that I was not prepared to live in Ireland permanently and wanted to return to Melbourne. That was where my mother, father and other family members lived. As I had a child my desire to return to Australia had become more urgent

14. The parents are in agreement that the father’s contract position with M1 in New Zealand ceased to be available in New Zealand when the business transferred its activities to Asia early in 2006 and as a result, the father was made redundant on 11 May 2006.  Having regard to the affidavits of Ms T and Ms B both sworn and filed on 20 September 2007, in addition to a number of assertions in the mother’s affidavits, I consider on the balance of probabilities that the father was unsuccessful in applying for a position with M1 in Asia, despite his assertion to the contrary in paragraph 48 of his affidavit sworn and filed on 12 September 2007.

15. Although the parents made a joint decision to sell their property in Wellington, New Zealand in February 2007, I am not satisfied that this decision was indicative of the parents’ intention to relocate to Australia on a permanent basis. The sale of the property was brought about in part by the parties’ financial burdens including their mortgage and credit card repayments and their limited income, as a result of the father’s redundancy and mother’s decision not to return work. Whilst Mr H deposes, in his affidavit sworn 12 and filed 13 November 2007, that he deposited the mother’s share of the proceeds of sale into an Australian bank account, the details of which were forwarded to Mr H by the father, I regard this act by the father as evidencing the father’s knowledge of the mother’s intention to reside in Australia rather than proof of his intention to relocate to Australia.

16. I am satisfied that the father’s intention was not to relocate to Australia immediately before the mother and the child’s departure on 2 February 2007.  This is evidenced by his spontaneous travel to Australia on 17 February 2007, once the mother indicated her desire to remain in Australia. Paragraph 29 of his affidavit sworn 26 September 2007, filed 27 September 2007 reads as follows:

    Although she had the trips to Australia in February, April and June, she gave good explanations to me as to why she should go on these trips.  If we had agreed she could move to live there, or that we should both live there, there would have been no reason for me to fly to Australia at short notice in February, to discuss her telephone call to me when she said she was thinking about a trial separation.

17. Following the father’s return to New Zealand from Australia on 18 February 2007, the father proceeded to apply for employment positions in March 2008 with M1 in Australia and M2 in Australia. I am satisfied that these applications were illustrative of a decision by the father to relocate to Australia for a period of unspecified duration, in the hope that this would improve his relationship with the mother.  In paragraph 13 of the mother’s affidavit affirmed 29 August 2007, she deposes:

    When I told [the father] again in March/April 2007 during my visit to New Zealand that I would not promise to stay in New Zealand he again said that he would look for work in Melbourne.  He applied for and was offered a job in Melbourne with [M1] but it was only a short term contract.

18. This evidence is consistent with paragraph 32 of the father’s affidavit sworn and filed 12 September 2007:

    I agree I did apply to [M1] in Australia for jobs at [the mother]’s insistence.  This was on the basis that I would move to stay in Melbourne temporarily with [the mother] and [the child]….However [the mother] went and got some advice about it and realised that it was not possible for me to take up those jobs at it would damage my chances for visa and citizenship in New Zealand. 

19. I am satisfied that the father rejected the employment opportunities in Australia as they would endanger his chances of obtaining New Zealand citizenship. Until the father received the mother’s letter dated 29 July 2007, he took no steps to obtain [the child]’s return from Australia.  I am satisfied that although he was unhappy with the situation, he was willing for the mother and the child to remain in Australia in circumstances where the mother’s intention to remain in Australia with the child for the future had been communicated to him on 16 February 2007, and reinforced by the letter from her solicitor sent in March.

20. I am also satisfied that as of 1 June 2007, which marked the beginning of the father’s four month employment contract with D Limited in Wellington, the father intended to reside in New Zealand until at least October 2007.  The father was aware of and amenable to the possibility that his position at D Limited could become permanent upon the conclusion of the temporary contract.     

21. Therefore, since the father’s intention was to habitually reside in New Zealand immediately before the retention, the mother’s intention becomes a necessary and significant consideration. 

22. As mentioned earlier, the mother’s intention in moving to New Zealand in March 2005 was to develop her career in nursing and her relationship with the father.

23. The parents are in agreement that shortly after the mother’s arrival in New Zealand, she secured a twelve month employment contract with a Hospital.  The parents concur that this contract was not extended and that at the conclusion of the twelve month period they took preliminary steps towards purchasing tickets to travel to Europe due to the paternal grandfather’s deteriorating health.  Upon discovery of the mother’s pregnancy, the parents decided not to continue with their travel plans.

24. The mother asserts that from 16 February 2007 at the very latest, she decided to reside in Australia.  In paragraph 21 of his affidavit sworn 26 September and filed 27 September 2007 the father states:

    Looking back with hindsight I can see that [the mother] may have had a different idea about her trips to Australia but she always indicated to me that they were for soundly based reasons such as:  relatives visiting from abroad; family and friends social occasions; and to visit her friend diagnosed with cancer.

25. The mother’s intention to reside in Australia is further evidenced by the return tickets the mother purchased to travel to New Zealand from Australia in March 2007 and May 2007, which is not the subject of dispute between the parents. This is also corroborated by the affidavit of Ms B filed 20 September 2007. The fact that the mother had solicitors send the father the  letter set out in paragraph 22 above, before her first visit, and the father’s subsequent inactivity when the mother acted in accordance with the intention set out in that letter, tends to confirm that her intentions were as she stated, to visit, not to return permanently.     

26. This intention is further supported by the father’s concession in his affidavit filed 27 September 2007, that the mother travelled to New Zealand with one suitcase in April 2007 and departed for Australia with two suitcases which included domestic appliances in May 2007. 

27. I am satisfied that from no later than 16 February 2007, it was the mother’s  intention to habitually reside in Australia and that whilst she may have entertained the possibility of continuing in a relationship with the father beyond that date, she did not vary the intention that she expressed in February, namely, to live with the child in Australia.

CONCLUSION

1. Having regard to my findings, it cannot be said that the parents had a shared or common intention as to where they would reside in the period immediately preceding the child’s retention in Australia, and certainly not a shared intention to reside in New Zealand. Applying the tests to which I have made reference for ascertaining the habitual residence of a young child by reference to the child’s parents, I am satisfied that the child was not habitually resident in New Zealand at the required time.  The retention therefore was not wrongful.  Accordingly, the SCA has not satisfied its burden of proof, and the SCA’s application for the child’s return to New Zealand will therefore be dismissed.

2. I now turn to the mother’s application for discharge of interim orders and for parenting orders. On 8 August 2007, on the application of the SCA, an order was made in this court that restrained the mother from removing the child from Australia and placing his name on the watch list. The SCA did not seek to justify the continuation of this order in its submissions to me, nor do I consider that the evidence before me establishes any basis for its continuation. I will therefore discharge the order and order that the child’s name be removed from the Watch List.

MOTHER’S APPLICATION FOR PARENTING ORDERS

1. In her response, the mother also sought parenting orders:

   [MS EVANS] of [N] whose occupation is home duties applies for the following orders:

   (a)The order of this Honourable Court made on 8 August 2007 be discharged; [This order will be made as foreshadowed].

   (b)The Father and Mother have joint parental responsibility for the child […] born […] December 2006;

   (c)The child live with the Mother;

   (d)The Father spend time with the child as agreed between the parties:

   (i)If the Father is living in Australia – in Australia;

   (ii)If the Father is living in New Zealand – in both Australia and New Zealand;

   (iii)If the Father is living in Ireland – in Australia only until the parties agree that [the child] is old enough to travel.

   (e)A Family Report be prepared about proper arrangements for the child to spend time with the Father;

   (f)Such further and other orders as this Honourable Court deems appropriate.

1. The orders sought in subparagraphs (b) to (f) are not orders that should be considered in proceedings between the SCA and the mother, which are proceedings under the Regulations, and such relief should be considered in proceedings between the mother and the father. Such orders can clearly be sought from this court, or from the Federal Magistrates’ Court, under the Family Law Act 1975 if the parents are unable to resolve parenting issues in relation to the child between them. I will therefore not treat the mother’s response as raising the issue of parenting orders for determination as between the parents in this proceeding.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate: …

Date:  28 April 2008