State Central Authority and Fang - [2017] FamCA 533

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & FANG

[2017] FamCA 533

FAMILY LAW – CHILDREN– CHILD ABDUCTION – HAGUE CONVENTION – Where the application was made more than one year after the alleged wrongful removal – where the child is an infant – where the mother is settled in Australia –where the child who has been in Australia for four months is settled in his new environment

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

Attorney-General’s Department & McGaffey [2015] FamCA 722
Department of Family and Community Services & Raho [2013] FamCA 530
Director–General, Department of Community Services & M and C (1998) FLC 92-829
Graziano & Daniels (1991) FLC 92-212
Secretary, Attorney-General’s Department & TS (2001) FLC 93-063
State Central Authority v Ayob (1997) FLC 92-746
State Central Authority & Castillo [2015] FamCA 792
State Central Authority & CR (2005) FLC 93-243
State Central Authority & Hajjar [2010] FamCA 648
Townsend, AS & Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842
W & W (Child Abduction: Acquiescence) [1993] 2 FLR 211

APPLICANT:

State Central Authority

RESPONDENT:

Ms Fang

FILE NUMBER:

MLC

4576

2017

DATE DELIVERED:

26 July 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

7 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Porritt

SOLICITOR FOR THE APPLICANT:

Department of Health & Human Services

COUNSEL FOR THE RESPONDENT:

Ms Carter

SOLICITOR FOR THE RESPONDENT:

MCI Lawyers & Consultants

Orders

The Form 2 Application filed by the State Central Authority on 11 May 2017 be dismissed.
The mother’s Initiating Application filed 12 April 2017 be adjourned for hearing in the Registrar’s Directions Hearing List at 10.30 am on 1 September 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Fang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4576 of 2017

State Central Authority

Applicant

And

Ms Fang

Respondent

REASONS FOR JUDGMENT

On 11 May 2017 the State Central Authority (“SCA”) filed a Form 2 Application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) seeking the return of the child C (“the child”) born in 2014 (now two years and nine months of age) to China.
The requesting parent is the father Mr B (“the father”) born in 1985 (now 32 years of age) who currently lives in China with his parents, having returned to China in September 2016 after ceasing his employment in Australia.
The mother Ms Fang (“the mother”) born in 1985 (now 32 years of age) is the respondent to this application. On 19 March 2017 she travelled to Australia from Malaysia, where she had been living with the child since 11 February 2016. The mother now lives with the child in Melbourne in an apartment purchased for her by her father in 2012.

The Issues

When an application for a return order is filed within one year of the wrongful removal or retention of a child, subject to the exceptions in reg 16(3) of the Regulations, the Court must order the return of the child (reg 16(1) of the Regulations). The circumstances in which a child’s removal or retention will be found to be wrongful are set out in reg 16(1A) of the Regulations.
However in circumstances where, as is conceded by the SCA in this case, the application for a return order is filed more than one year after the date of the alleged wrongful removal or retention, reg 16(2) of the Regulations applies. In those circumstances the Court must make a return order only if it is satisfied that the person opposing the order has not established that the child has “settled in his or her new environment”.
Although there is a dispute in this case as to whether the child was wrongfully retained in Malaysia by the mother, it is agreed that whether the alleged wrongful retention occurred on 9 March 2016, when the father asserts that the mother told him she would return to China with the child and did not do so, or the 15 March 2016 when the father asserts the mother had again agreed to return to China with the child or 16 March 2016, when the mother told the father that she would not be returning to China, the application for a return order was filed more than one year later. In those circumstances, the Court must make the return order only if it is satisfied that the mother has not established that the child is settled in his new environment in Australia.
There is also no dispute in this case, albeit it is acknowledged by the SCA that there is at least one judge of this Court who has taken a different view, that if the Court is satisfied that the child is settled in his new environment, the Court’s discretion to order his return to China is exhausted.
On that basis, the parties did not address the question of whether the child was habitually resident in China at the time of his alleged wrongful retention in Malaysia or whether, as asserted by the mother, the father had acquiesced to her decision not to return with the child to China. In the event that the Court is satisfied that the mother has not established that the child is settled in his new environment, it will then be necessary to determine the question of whether the child was habitually resident in China immediately prior to his wrongful retention in Malaysia as asserted by the SCA and/or whether, as alleged by the mother, the father had acquiesced to the child remaining in Malaysia with the mother and/or the child moving to Australia with the mother.

The Evidence

The SCA relied upon the following documents:
·Form 2 Application under the Family Law (Child Abduction Convention) Regulations 1986 with annexures filed 11 May 2017;
·Father’s Affirmation in support of the China Hague Application dated 24 April 2017;
·Form 2B Reply filed 29 June 2017;
·China Family Court Directions Order dated 12 April 2017 and filed 20 April 2017;
·The mother’s Initiating Application in the Family Court of Australia filed 12 April 2017;
·Outline of submissions on behalf of the SCA filed 5 July 2017.
The mother relied upon the following documents:
·Form 2A Answer/Cross Application under the Family Law (Child Abduction Convention) Regulations 1986 with annexures filed 9 June 2017;
·Mother’s Affirmation in relation to the China Hague Application affirmed 26 April 2017;
·Mother’s Application for Stay and Dismissal and Summons in relation to the China Hague Application with annexures dated 26 April 2017;
·Mother’s Affidavit in Reply with annexures filed 5 July 2017 in the Family Court of Australia;
·Affidavit of Mr E (the mother’s father) filed 4 July 2017 in the Family Court of Australia;
·Summary of argument dated 5 July 2017;
·A list of additional cases referred to by counsel for the mother in submissions.
Although counsel for the SCA and the mother relied upon these documents, it is also the case that much of that documentation was ultimately of only marginal relevance given the limited nature of the issue I was required to determine.
Neither counsel for the SCA or the mother objected to the evidence relied upon by the other party or sought to cross examine each other’s witnesses. On that basis the matter proceeded on submissions of counsel for the SCA and the mother. It was the SCA’s case, whilst not challenging the mother’s evidence, that the court could not find on the balance of probabilities based upon that evidence that the child is settled in his new environment. In those circumstances, unless otherwise indicated, any statement of fact is to be treated as a finding of fact.
The onus of proof lies with the mother to satisfy the Court that the child is settled in Australia. As Nicholson CJ said in Secretary, Attorney-General’s Department & TS (2001) FLC 93-063 (“TS”) at paragraph 110, that is not “a particularly heavy onus but simply the establishment of an issue of fact determined on the balance of probabilities”.

Background

The father in this case was born in China immigrating to Australia with his family when he was approximately 12 years of age. He holds both China Special Administration and Australian passports. He obtained his Bachelor degree in or about 2008 and completed his Masters in or about 2012. The father was employed in Australia until early 2013 when he was seconded by his Australian employer to work in China for a period of two years.
The mother was born in Malaysia and apart from the period of the father’s secondment to China prior to the parties’ separation, she has otherwise lived, studied and worked in Australia since October 2005. The mother completed a Bachelor degree in Queensland. The mother holds Malaysian citizenship and is a permanent resident of Australia. The mother has not been in gainful employment since the marriage and has been the child’s primary carer since his birth.
The father and mother commenced their relationship in or about September 2012. At that time the mother was living in Brisbane and the father was employed and living in F Town in Queensland. Shortly after commencing their relationship, the mother moved to Melbourne and lived in an apartment purchased for her by her father. The parties maintained a long distance relationship until the father’s employer offered him the opportunity to work in China. The mother entered China on a visitor’s visa on 28 March 2013. Thereafter the father and mother commenced cohabitation in China.
The mother’s evidence is that although she now has a spouse visa, that visa expires on 27 July 2018 and that thereafter she will only be able to remain in China on a three month visitor’s visa, which she would need to renew every three months. The father asserts that the mother will be permitted to remain in China on a spouse visa whilst they remain married and even if they were to divorce, there are various options available which would allow the mother to both live and work in China. Although the father and mother disagree, it is not necessary for the purposes of the matters I must determine to make findings with respect to this issue.
The mother also deposes that it was always intended that she and the father would return to live and work permanently in Australia and that he was keen to take up the offer of the secondment in China in order to advance his employment prospects in Australia. The father’s case is that although at the start of their relationship, they had agreed that they wanted their future to be in Australia, that changed after they went to live in China. It is his evidence that he and the mother had had discussions about his secondment in China being an opportunity not only to progress his career, but also an opportunity to spend more time with and have the support of his family in China, as well as be closer to the mother’s family in Malaysia. The father also deposed that he and the mother “...did discuss the possibility of returning to Australia although we did not agree when that would occur.”
The mother was granted permanent residency in Australia on 20 September 2013 and decided to return to Australia. She stayed with her parents in Malaysia for a few weeks before travelling to Melbourne on 14 December 2013. She remained in Melbourne until 29 January 2014, travelled to China to spend Chinese New Year with the father and returned to Melbourne on 25 February 2014. The mother’s evidence is that she was pregnant by this time and although she says that she and the father had wanted their child to be born in Australia, she also deposes that the father missed her and wanted her to return to China.
The father and mother were married in Melbourne in 2014 and although the mother says she was reluctant to return to China, based upon the father’s reassurances that they would return to Australia to live, she returned to China. By this time she was some five months pregnant and despite their earlier plans, the child was born in China.
On 11 February 2016, the father and mother travelled with the child to Malaysia to celebrate the Chinese New Year with the mother’s family. Shortly thereafter the father and mother had an argument and on 13 February 2016, the mother says the father announced that he was leaving and returning to China. She says that the father told her to stay in Malaysia and not to return to China, at which time she formed the view that the marriage was over. Although the father denies telling the mother she should stay in Malaysia, there is no dispute that the mother did not return to China with the child. On 22 February 2016, the mother and the child travelled with her parents to Melbourne and remained in Melbourne until 5 March 2016. On 11 March 2016, the mother travelled with her brother and the child to China to collect her personal belongings. She says that when she contacted the father to tell him that she would be in China, the father told her he was in Country G with his parents. The mother returned to Malaysia with the child on 12 March 2016.
The mother says that the father came to Malaysia with his parents between 19 and 21 March 2016, wanting to reconcile. On 24 March 2016 the father sent a Whatsapp message to the mother indicating that he was “organising to move back to Aust.” On 14 May 2016 he asked the mother to return to China as he was leaving for Brisbane on 17 May 2016 and had booked a hotel for the mother and the child to stay in for the two days prior to their departure for Brisbane.
On 20 May 2016, the father told the mother she should join him in Brisbane to help him find a suitable apartment for them to live in before their belongings, which he had arranged to have shipped to Australia, arrived in early June. The father returned to his employment in Brisbane until being made redundant in September 2016. Thereafter, the father returned to China, although in November 2016 his father sent photographs to the mother of an apartment he said he had provided for the father and mother in Brisbane. The father’s father encouraged the mother to return to Brisbane to live with the father.
The father sought legal advice in China at the end of October 2016 and on 15 March 2017, issued proceedings in China seeking parenting orders. The mother returned to Australia with the child on 19 March 2017, prior to being served with the father’s application. She issued proceedings for parenting orders and property settlement in this Court on 12 April 2017.

When does the one year period commence?

The wording of reg 16 makes reference to the wrongful removal to or retention in, Australia, a possible interpretation of that regulation being that time starts to run from the date upon which the child the subject of the proceedings arrives in Australia. This issue becomes relevant in this case as the child was allegedly retained in Malaysia before coming to Australia and has only been in Australia for four months. In State Central Authority & CR (2005) FLC 93-243 (“CR”) Kay J affirming the view he expressed in State Central Authority v Ayob (1997) FLC 92-746 (“Ayob”) said at paragraphs 27-28 as follows:
I looked at this question in my earlier decision in State Central Authority v Ayob (1997) 21 Fam LR 567; 137 FLR 283; (1997) FLC 92-746 (Ayob)…I said:
…
At first blush, the Regulation appears to have time running from the moment the child actually reaches Australia. In this particular case, this is somewhat crucial to one aspect of the case because it is common ground that the child has now been in Australia only a matter of weeks and that is clearly less than one year after the date upon which the child first entered Australia…
In my view, while such an interpretation accords with a literal reading of the words of reg 16(1), the Regulations have to be read in the context of the Convention and the intention of the nations adopting it. The intention of the Convention is clearly to require the mandatory return of the child within a year of its wrongful removal or retention and to require the mandatory return of the child after the expiration of a year, unless it can be demonstrated that the child has settled in his or her new environment. In my view, the critical date is the date of wrongful removal or wrongful retention and not the date of the appearance in Australia for the first time of the child (emphasis added)
…
While there have been amendments to the regulations since my decision in Ayob, I do not view those amendments as materially affecting my reasoning for concluding that the crucial date when time begins to run under the regulations is the time the child is removed from its place of habitual residence rather than the time it is brought to Australia.
Both counsel for the SCA and the mother agreed that the one year period runs from the date the child was allegedly retained in Malaysia. As discussed previously, while there is some dispute as to the precise date that this occurred, it is also accepted that the application was made more than one year after the date the child was wrongfully removed to Malaysia.

Is the child settled in Australia?

As the Full Court said in Director–General, Department of Community Services & M and C (1998) FLC 92-829 (“M and C”) at paragraph 91 the “test and the only test to be applied is whether the children have settled in their new environment.” This test was adopted in Townsend, AS & Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842 (“Townsend”). In applying the test articulated in M and C, the Court similarly rejected the earlier test in Graziano & Daniels (1991) FLC 92-212 and stated at paragraph 35 that:
In our view, therefore, insofar as Graziano suggests that the test for whether a child is “settled in his or her new environment” requires a degree of settlement which is more than mere adjustment to surroundings, or that the word “settled” has two constituent elements, a physical element and an emotional constituent, it represents a gloss on the legislation and should not be regarded as accurately stating the law. We agree with the Full Court in M and C (the correctness of which was not challenged before us) that “The test, and the only test to be applied, is whether the children have settled in their new environment.”
As stated by the Full Court in M and C and affirmed in Townsend, the word “settled” is given its ordinary and natural meaning and there are no degrees of settlement: the child is either settled in its new environment or not. It is a question of fact based upon the particular circumstances of each case.
But what exactly does that mean and how does one apply that test in this case, particularly having regard to the child’s age? In Department of Family and Community Services & Raho [2013] FamCA 530, Le Poer Trench J identified the factors he said he needed to consider in that case as follows:
a)Whether the children were content in their current environment (an objective observation);
b)The children’s subjective views of their current circumstances;
c)What weight should be given to the children’s views;
d)Whether the mother in that case had established a stable physical and financial environment for the children;
e)The extent to which the children were embedded in their current community (schools, supports, friends, extracurricular activities and the like); and
f)The nature and circumstance of each child which might impact upon an assessment of whether each child is settled.

In my view, the last of the factors identified by Le Poer Trench J is of particular significance in this case. In TS Nicholson CJ rejected the position adopted by some United States courts that “...very young children are incapable of settling into a new environment, or alternatively an assumption that the environment of a very young child is so confined that a move of their principal caregiver with them is all that is needed to preserve their environment”, which in his view involved the addition of a gloss to the meaning of the Regulations. At paragraph 116 his Honour said as follows:
In my view, in the case of a very young child such as BAS, it may be that his environment is more constrained than that of an older child, but I consider that his home environment is likely to be correspondingly more important to him. If he is settled in it as I find that he is, then this would appear to be the very situation that the Convention envisages, where he should not be returned having regard to the passage of time. The environment that I must consider is the environment of this child and not some theoretical environment.
Kay J in Townsend said as follows apropos this issue at paragraph 8 of his judgment:
[I]s their “new environment” simply a geographic locality or does it entail other considerations such as the household in which they live? Is the children’s environment defined by where they live rather than with whom they live? Clearly such considerations would change in emphasis depending upon the age of the child. The essential environment for a babe in arms would most likely be the immediacy of its principal caregiver no matter where that care is provided. The environment for a teenager may well be dependent on other relationships and more material factors including education, housing and the like.
In Attorney-General’s Department & McGaffey [2015] FamCA 722 (“McGaffey”) Le Poer Trench J said at paragraph 127 as follows:
…In this case, given the clearly high dependence the child has on his mother, her particular circumstances become very relevant. I consider it an important matter to determine, in this case, whether the mother is settled in her new environment. I am satisfied that she is so settled. In this case I am satisfied that if she is settled then it is probable that the child is settled as well.
While McGaffey was concerned with an autistic child, rather than a very young child as is the situation in this case, I consider the remarks made by Le Poer Trench J in relation to the mother being settled in her new environment relevant to the circumstances in this case.
As previously referred to, the SCA did not challenge the mother’s evidence as to the child’s wellbeing, its case being that the Court could not conclude based upon that evidence that the child is settled in Australia.
I am satisfied on the balance of probabilities that the mother herself is settled in Australia. Australia is not a new place of residence for the mother. The mother has lived in Australia since 2005, apart from the periods during which she lived in China with the father and the time she spent in Malaysia following separation. The mother completed her education and was licensed to work in Australia. She owns property in Australia and now lives with her brother and the child in an apartment purchased for her by her father. The mother lived in this apartment prior to moving to China with the father in March 2013 and again when she returned to Melbourne prior to the marriage. The mother spent approximately two years living in China. I am satisfied that, at the very least when the parties left Australia for the father to take up his employment in China, they intended to make Australia their permanent home. Although the father’s family live in China, neither he nor the mother own property in China. The mother does not otherwise have any connection with China.
I accept the mother’s evidence that she considers Australia her home. This is consistent with her having left Malaysia, which is not a signatory to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”) and returning to Australia, exposing herself to the possibility of orders requiring the child’s return to China.
The mother deposes that the child is settled in her care in Melbourne and describes the child’s routine in some detail. The mother says that the child wakes at around 9.00 am and that they have breakfast together at home. Although they usually have lunch together at home, they occasionally go out to lunch at a shopping centre approximately two blocks from the apartment. She says she takes the child to the State Library where he plays with other children his age and takes him to play in the children’s playground at a nearby park. The child attends swimming lessons each Sunday and has been attending child care between 12.30 pm and 6.15 pm each Wednesday, giving him the opportunity to interact with other children and the mother some time to do a bit of shopping and attend to other chores. The child has already been offered a place in three year old kindergarten commencing in January next year. The mother describes the child as a happy child who eats and sleeps well, plays happily with other children and is meeting all his developmental milestones.
Although the mother and the child have only been in Australia for four months this is a not insignificant period in a young child’s life. In any event the length of time the child has been in Australia is just one factor and is not determinative as to whether the child is settled in his new environment. The time it takes for a child to become settled will depend upon the particular circumstances of the child in each case.
I am satisfied on the balance of probabilities that not only is the child content in the care of his mother, who has been primarily responsible for his care since his birth, but that notwithstanding that he has only been in Australia for four months, he is settled in his new environment. The mother’s evidence as to both her connection to Australia and the arrangements she has made for the child’s care since his arrival in Australia in my view support that conclusion.
In circumstances where I am satisfied that the mother has satisfied the burden of establishing that the child is settled in his new environment, I am not required to make an order for his return to China.

Is there a discretion to order the return of the child? If so, how should that discretion be exercised?

Notwithstanding that counsel for the SCA and the mother agreed that having determined that the child is “settled” in Australia, the Court’s jurisdiction pursuant to the Regulations to make an order for the child’s return to China is exhausted, both made submissions with respect to the exercise of any residual discretion. Although I agree with Bennett J’s conclusions in State Central Authority & Hajjar [2010] FamCA 648 and State Central Authority v Castillo [2015] FamCA 792 that the Court’s jurisdiction is exhausted, even if that were not the case, I accept counsel for the mother’s submission that if the Court did have a residual discretion to make a return order, this is not a case in which the Court would exercise that discretion to do so.
Both counsel for the SCA and the mother referred to and relied upon the decision of Waite J in the United Kingdom case of W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211, albeit they disagreed as to what conclusion the Court should draw based upon that decision. Waite J referred to six considerations which he said informed the determination of the discretion as to whether to make a return order. Those considerations are as follows:
a)Choice of forum;
b)Possible outcome of any family law proceedings in whichever forum is chosen;
c)The consequence of the acquiescence that has occurred;
d)The situation awaiting the parent and the child in the country to which the order requires the child to be returned;
e)The anticipated emotional effect on the child of a peremptory return; and
f)The extent to which the purpose and philosophy of the Convention would be at risk of frustration if a return order were to be refused.
Counsel for the mother submitted and correctly in my view that the evidence in this case would militate against the Court making a return order. In particular, she relied upon the unsuitability of China as a forum in circumstances where the child lived in China for 14 months and left when he was only 16 months old, the mother’s limited connection to China, her lack of support in China, her inability to work in China, her visa status and how that would be likely to impact upon the outcome of any proceedings in China and in particular, any application she might make to return to Australia with the child. Counsel for the mother conceded that an order to return the child to China would not have an emotional effect on him. Finally counsel for the mother submitted that a return order would frustrate the purpose and underlying philosophy of the Hague Convention, it being a remedy of “hot pursuit”.
In circumstances where I am satisfied that the child is “settled” in his new environment in Australia, I propose to dismiss the Form 2 Application filed by the SCA on 11 May 2017. The mother has already issued proceedings in this Court seeking both parenting orders and orders adjusting the parties’ property interests. Those proceedings have been awaiting the outcome of the SCA’s application. As that application is to be dismissed, I propose to list the mother’s Initiating Application filed 12 April 2017 to the Registrar’s Duty List for directions.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 July 2017.

Associate:

Date: 26 July 2017