State Central Authority and Litchfield
[2009] FamCA 317
•29 April 2009
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & LITCHFIELD | [2009] FamCA 317 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – application by Central Authority seeking the return of a 15 year old child to the United Kingdom – where the respondents are the child’s maternal grandparents – where the mother agreed to the child coming to Australia with the maternal grandfather for a holiday – whether the child was wrongfully retained in Australia – whether the child was habitually resident in England at the time of the alleged wrongful retention in Australia – habitual residence of “older” children – whether a child can have a different habitual residence from their parents or guardians – whether the mother had rights of custody – whether the child’s objections show a strength of feeling beyond the mere expression of a preference or ordinary wish – whether it is appropriate to take account of the child’s views in light of her age and degree of maturity – the child’s retention was not wrongful as the child was habitually resident in Australia at the time – application for return dismissed |
| Family Law Act 1975 (Cth) s 111B Convention on the Civil Aspects of International Child Abduction, Article 8 |
| M W v Director-General, Department of Community Services (2008) 39 Fam LR 1 L K v Director-General, Department of Community Services (2009) 253 ALR 202 |
| APPLICANT: | Commissioner of Police, South Australia as State Central Authority |
| RESPONDENTS: | Mr and Mrs Litchfield |
| FILE NUMBER: | ADC | 4338 | of | 2008 |
| DATE DELIVERED: | 29 April 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 18 February 2009, 16&17 March 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Olsson |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitors Office |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke, QC |
| SOLICITOR FOR THE RESPONDENT: | White Berman |
Orders
The Application by the State Central Authority filed on the 3 November 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Litchfield is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4338 of 2008
| COMMISSIONER OF POLICE, SOUTH AUSTRALIA AS STATE CENTRAL AUTHORITY |
Applicant
And
| MR AND MRS LITCHFIELD |
Respondents
REASONS FOR JUDGMENT
Introduction
The Central Authority for South Australia (the Commissioner of Police) made an application to the Court for an order that the child born in February 1994 be returned to the United Kingdom. The child came to Australia from England with her grandfather Mr Litchfield and has since been residing here with her grandfather and grandmother Mrs Litchfield. Mr and Mrs Litchfield are the respondents to the application by the Central Authority.
The application was brought on behalf of Ms H who is the mother of the child. The mother resides in the United Kingdom.
The proceedings are brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
Hearing
The application was filed by the Central Authority on the 3 November 2008. The matter was listed for final hearing before me on the 18 February 2009. Ms Olsson appeared for the Central Authority and Ms Pyke, QC for the grandparents. Arrangements were made for the mother to attend to hear the proceedings and give evidence by telephone link from the United Kingdom. Computer difficulties which hindered the mother’s access to relevant documents caused problems and the matter was adjourned for final hearing before me on the 16 and 17 March 2009 when the mother completed her evidence and the grandparents gave oral evidence.
After hearing submissions from counsel on the 17 March 2009 I reserved judgment.
Following the decision of the High Court in M W v Director-General, Department of Community Services (2008) 39 Fam LR 1 it was considered appropriate to list the matter when evidence-in-chief and cross-examination of the mother and grandparents could take place in order to assist in determination of the factual matters in dispute. (After the matter was listed for hearing in this manner, the High Court of Australia referred to the decision of M W v Director-General, Department of Community Services (Supra) with approval in L K v Director-General, Department of Community Services (2009) 253 ALR 202.
Counsel for the parties agreed that it would not be necessary to call the author of the family report to give evidence.
At the hearing before me I therefore had access to the application and supporting affidavits filed by the Central Authority on behalf of the mother, the Answer and Cross-application and affidavits of the grandparents, the Family Report and the oral evidence of both the mother and the grandparents.
It should be noted that the mother was giving evidence by telephone link from the United Kingdom which involved a significant time difference with the mother giving her evidence in the middle of the night in England.
Background and Relevant Facts
The child was born in February 1994 and is now aged 15. She was born in South Australia. The mother was also born in South Australia in 1967.
The grandmother was born in England and came to Australia as a teenager in 1960. The grandfather was born in South Australia. After their marriage they continued to live together in South Australia. The mother in these proceedings is their eldest child. They have two other children (a son and a daughter).
The mother first travelled to the United Kingdom in March 1992. She returned to Australia in September 1992. The mother travelled to England again in June 1993. She returned to Australia in November 1993 to spend time with her family. She was by then pregnant. The mother in her affidavit says that she started a relationship with the child’s father Mr G during her first visit to England in 1992. The child was born in Australia in February 1994. The mother returned to England with the child in November 1995.
The mother had another daughter J in July 1998. J remains in the care of her mother.
After the relationship with the child’s father broke down, the mother subsequently started a relationship with Mr H. The mother married Mr H in Australia in February 2000. In March 2000, the mother, Mr H, the subject child and J travelled to the United Kingdom.
Mr H died suddenly in May 2000.
In August 2000 the mother, the subject child and J travelled to Australia where they remained until September/October 2007.
The child was enrolled in schools in South Australia and continued to have regular contact with her grandparents.
In September 2006 the mother travelled to England for a short visit. The mother maintains that this was to make arrangements for her and the children to reside in England permanently. During this time the children lived with the grandparents.
There is no dispute that the mother made it clear to her parents that she wished to return to England to reside with the children. There is a dispute on the evidence about communication between the child, the mother and the grandparents at this time. It is agreed however that the child was initially not happy about moving to live in the United Kingdom in September 2007.
The grandparents say that the child only agreed to go with her mother to England on this occasion on the basis that she would go for a trial period of six months. The mother denies there was any such agreement with the child and says that although the child was initially upset at the prospect of moving to England, she agreed to go with her mother and sister.
The mother’s evidence in cross-examination was that at times the child told her that she did not want to go back to the United Kingdom to live and at times she had mixed feelings. She also said that the child from time to time said that it “wouldn’t be so bad”.
When confronted with the child’s statements to the Family Consultant the mother asserted that the child had been influenced by the grandparents to say that there was an agreement that she would only live in England for a trial period of six months.
After moving to the United Kingdom the child attended school. She was not happy in her school. Arrangements were made for her to attend a different school.
By arrangement between the mother and the grandparents and the child, the child returned to Australia with her grandfather in early April 2008. The grandfather travelled to the United Kingdom so that he could travel back to Australia with the child. The mother said that this was an opportunity for the child to have a holiday in Australia and to catch up with her friends.
The mother’s evidence is that arrangements were made for the child to travel to Australia and stay with her grandparents on the basis that she would return to England in August 2008 in time to resume school at the beginning of the school year in England in September 2008.
I accept the mother’s evidence that the child was aware when she came to Australia that it was expected that she would return to England in time for her to commence school in England in September 2008.
The mother provided the Court with a letter given to the child’s school in England which said:
“My daughter […] will be leaving [S] School on the 21 March 2008. To do her schooling in South Australia for 4 months and on her return she will be going to a school closer to our new house.
Thank you very much for having my daughter at your school.”
An email from the Personal Assistant of the Head Teacher at S School confirms that that letter was received by the school in March 2008.
The mother proposed that the child would leave the single-sex school and enrol in a mixed sex school in England.
Whilst the child was in Australia living with her grandparents she was enrolled in a school she previously attended at V.
In July 2008 the mother and J travelled to Australia.
The mother’s evidence was not consistent about arrangements for the subject child’s return. I accept her evidence that she hoped that the child would return to England with her and J in late July 2008, but that the child was unhappy with the idea of returning to the United Kingdom.
The mother maintains that the grandfather would not hand over the child’s passport to the mother and that this was the reason that the mother and J returned to the United Kingdom without the child. The mother maintained that she expected the child to return to the United Kingdom in August 2008 in time for her to commence school at Y High School in the United Kingdom at the beginning in September 2008. I accept this evidence.
After the mother and J left Australia on the 29 July 2008 there was telephone contact between the mother and her parents when the mother made it clear that she wanted the child to return to England immediately.
By the 12 August 2008 the grandparents had consulted a solicitor in South Australia who was instructed to write to the mother seeking her consent to the child’s continued residence in South Australia. This consent was not given.
The grandparents then started proceedings in the Federal Magistrates Court of Australia in Adelaide seeking orders that the child reside with them.
On the 9 September 2008 the mother signed the authorisation to the Central Authority to commence proceedings for the return of the child to her care in the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations. The application by the Central Authority was filed in this Court on the 3 November 2008.
On the 19 November 2008 an order was made for the child to be interviewed by a Family Consultant and a report prepared directed to the child’s wishes and the factors in Regulation 16(3)(c) of the Family Law (Child Abduction Convention) Regulations. As a result the child was interviewed on the 7 January 2009 by the Family Consultant, Mr P. His report is dated the 21 January 2009.
The child has remained living with her grandparents in South Australia attending school in South Australia and participating in social and extra-curricular activities in South Australia since April 2008. The child is now aged 15.
Main Issues for Determination
There is considerable dispute about the suitability of the grandparents as custodians, the capacity of the mother and the relationship between the mother and the child. However, it was agreed on behalf of both parties that the issues of relevance to the determination of the Hague Convention proceedings before me were as follows:
(1)Habitual Residence;
(2)Rights of Custody;
(3)The Child’s Objections and the Court’s discretion to make orders for the return of the child.
Law
Section 111B of the Family Law Act 1975 (Ch) states:
Convention on the Civil Aspects of International Child Abduction
(1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention ) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.
(1A) In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:
(a)relating to the onus of establishing that a child should not be returned under the Convention; and
(b)establishing rebuttable presumptions in favour of returning a child under the Convention; and
(c)relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.
(1B) The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.
The objects of the Convention on the Civil Aspects of International Child Abduction are to ensure the prompt return of children wrongfully removed to or retained in a contracting state and to ensure that rights of custody and access are respected. The Convention and the Regulations do not refer to parents, mothers or fathers. The Convention uses neutral terminology such as “the person alleged to have removed or retained the child”. (Article 8). Similarly, the Regulations adopt neutral terminology rather than specifying any particular relationship between the child and the person concerned.
The Convention and the Regulations can apply to a situation such as this where the persons retaining the child or opposing a return of the child are the grandparents.
Therefore the Regulations apply to a situation where the person who has removed or retained a child is not a parent or a guardian. The purpose of the Convention is to return children wrongfully removed or retained regardless of whether the person who has removed or retained the child has any particular status.
The most significant part of the law concerned in this matter is Regulation 16 which states:
“(1) If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (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, institution or other body 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, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child's return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before hi or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.”
Habitual Residence
A short time before the matter concluded before me the High Court of Australia delivered judgment in the matter of L K v Director-General, Department of Community Services (Supra). The single judgment of the five Judges of the High Court of Australia discusses at length the authorities which have considered the meaning of “habitually resident”. Whilst the whole judgment needs to be considered, particular parts of the judgment are of considerable assistance in this case. Some of these are as follows:
“27.When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
…
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
…
45.Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.”
(My emphasis)
The objections of the child and the Court’s discretion
De Lewinski v Department of Community Services (1997) FLC 92-737 at page 83,939 states:
“We would not suggest that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts (sic) of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg. 16(3)(c). That is not the language of children, and the Court should not expect them to formulate and articulate their objection, if they had objected in the relevant sense, in that manner. The Court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense.”
Notwithstanding the existence of one of the exceptions in subregulation (3), the Court still has a discretion to exercise to determine whether to refuse to make the order or not. In particular, subregulation (5) provides:
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.”
In De L v Director-General, NSW Department of Community Services and Anor (1996) FLC 92-706 the majority of the High Court of Australia said at page 83,456:
“...However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the discretion is therefore, unconfined except insofar as the subject matter and the scope and purpose of the [regulations] enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”
(footnotes omitted)
Discussion
Habitual Residence
On behalf of the grandparents it was maintained that the child’s habitual residence had not at any time changed from Australia. It was maintained that when the child travelled to England with her mother in September 2007 she did not (and has not since) given up her habitual residence in Australia. The Central Authority maintains that after moving to England in September 2007, the child’s habitual residence became England and continued to be England at all relevant times.
On behalf of the grandparents it is also alleged that if the child’s habitual residence became England, then such habitual residence was abandoned with the child being habitually resident in Australia following her return to Australia in April 2008.
I am satisfied that the Central Authority has satisfactorily proved on the balance of probabilities that following their departure from Australia in September 2007, the child, her mother and sister resided in England. The mother proposed that she, the child and J would reside permanently in England. Whilst the child may not have been happy with this move and continued from time to time to be unhappy with her circumstances, such as the schooling arrangements in England, I am satisfied that the circumstances surrounding her residence indicate a sufficiently settled purpose to qualify as habitually resident.
The mother’s evidence confirms that the child was unhappy at her school in England and was missing her friends and family in Australia. The mother made arrangements for the child to travel to Australia with her grandfather for a period of four months. I am satisfied that the mother’s intention was that the child should spend some time in Australia but should return to England to commence school at her new school in September 2008. The child was aware that her mother had this intention and had assisted the mother in preparing the letter to go to her previous school in England.
At the time that the child left England in April 2008 I am satisfied that she was habitually resident in England.
It is necessary however to determine where the child was habitually resident when the alleged wrongful retention took place. I am satisfied that by early August 2008 the mother had made it very clear to the child and the grandparents that she wanted the child to be returned to the United Kingdom in order to start school in early September 2008 in England. From the beginning of August 2008 therefore the child remained in Australia against the wishes of her mother. This is therefore the time at which it is necessary to determine where the child was habitually resident.
By early August 2008 the child had been residing in South Australia with her grandparents for approximately four months. She had been enrolled in school, renewed friendships and was participating in extra-curricular activities.
The authorities which have considered the meaning of “habitually resident” refer frequently to the intention of, and habitual residence of, “persons upon whom the child is dependent”. The cases also refer to the intention of the parent or parents of the child. Most of those cases place emphasis upon young children having the same habitual residence as their parents. (My emphasis). The recent decision of L K v Director-General, Department of Community Services (Supra) refers in several places to young children when discussing habitual residence. (See paragraphs 27 and 34).
It is also significant to note paragraph 35:
“35.It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.”
The High Court referred to the New Zealand decision of Punter v Secretary for Justice [2007] 1 NZLR 40 “… the search is for the connection between the child and the particular state”.
At paragraph 45 the High Court judgment states:
45.… “degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.” (My emphasis).
It does not appear that any of the authorities discuss at what age a child is to be considered “young” for the purposes of determining habitual residence. Such a determination may be similar to that referred to in Regulation 16(3)(c) where reference is made to a child of sufficient age and maturity for their views to be taken into account.
The authorities do not expressly refer to older children having a different habitual residence from their parents or guardians, but it may be inferred that given the reference by various authorities to “young” or “younger” children that there is a distinction between the factors relevant to determining the habitual residence of older children and young children. It may therefore be inferred that the habitual residence of an older child is not simply to be taken to be that of the parent with whom they are or were residing. This is particularly so in view of the comments in paragraph 27 of L K v Director-General, Department of Community Services (Supra):
“The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing”.
Habitual residence of an older child may depend on the circumstances of the particular case without applying presumptions connected to the parent’s intentions or the parent’s habitual residence.
In August 2008 the child was 14 years and 5 months. (She was born in February 1994). The child had been residing with her grandparents in South Australia since April 2008. She had settled back to a relationship with her friends and resumed attendance at her previous school. Her mother did not intend or consent to her residing permanently or being settled in South Australia. However the child’s age, the arrangements made for her day to day living, her intentions and wishes sufficiently established a set of circumstances which requires a finding that in August 2008 the child was habitually resident in Australia.
This finding prevents the Central Authority from establishing that the child’s retention in Australia was wrongful in accordance with Regulation 16(1A).
Rights of Custody
If however, I am wrong and the child were determined to have been habitually resident in England at the beginning of August 2008, it would be necessary to consider the issue of “Rights of Custody” (Regulation 16(1A) (c), (d) and (e)).
If the child was habitually resident in England in August 2008 the mother had rights of custody in relation to the child under the law of England. I am also satisfied that if the child were habitually resident in England in early August 2008 then her retention in Australia was in breach of the mother’s rights of custody, which the mother would have exercised if the child had not been retained in Australia.
The Child’s Objections
Further if I am wrong in relation to the issue of the child’s habitual residence in early August 2008 it would also be necessary to consider the discretion to refuse to make an order for the return of the child to England based upon the child’s objections. (Regulation 16(3)(c)).
In Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277 the Full Court discussed the application of the provisions relating to a child’s objection.
In De L v Director-General NSW Department of Community Services and Anor (Supra) the High Court judgment says at page 83,456:
“… it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except insofar as the subject matter and the scope and purpose of the [regulations]’ enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”
The report of the Family Consultant dated the 21 January 2009 set out the child’s views from an interview conducted on the 7 January 2009. At the time of the interview the child was 14 years and 10 months old. Paragraph 9 of the report says:
“9.[The child] presented as mature, consistent and articulate in her provision of information. She expressed her views with clarity and confidence and appeared to have an excellent understanding of her own needs. Her expressed wishes were congruent with her expressed needs. She was also subdued in her manner when describing experiences that had been difficult for her. There was nothing in her presentation to indicate that her expressed views or wishes had been distorted by coercion or pressure from others.”
At paragraph 13 of the report similar views were expressed:
“13.[The child] was clear, consistent, and adamant in her expressed view that she wishes to continue living with [the grandparents] in Adelaide, and that she is strongly opposed to living with [the mother] in the United Kingdom. She also expressed the view that even if [the mother] returned to live in Adelaide, she would want to continue living with [the grandparents].”
The report contains references to the child describing how unhappy she was during her time she lived in England and the conflict with her mother particularly about her mother’s wish for her to return to the United Kingdom with her mother after her mother visit in July 2008.
Under the heading “Evaluation” the report states:
“22.[The child] was born in Australia, lived in Australia from 2000 to 2007, then after living in the United Kingdom for several months from October 2007 to April 2008 she had lived again in Australia for approximately 9 months at the time of interviews for this report. All of the information obtained for this report indicates that [the child] is happy, safe, settled and secure in her life in Adelaide, regards Australia as her home country, and regards her time in the United Kingdom as an aberration in her otherwise settled life in Australia.
23.[The child] understands that she returned to Australia according to an agreement that [the mother] made with her. She wishes to continue to live with her grandparents in Adelaide, and objects very strongly to being taken to the United Kingdom. Her strength of expressed feeling regarding this issue is very high and greatly exceeds the mere expression of a preference or of ordinary wishes.
24.[The child] is almost 15 years old and demonstrated an impressively high level of maturity and insight into her situation and own needs during interview. Her expressed wishes were congruent with her legitimate needs. It is appropriate to take account of her views in any decision-making regarding her future.”
The evidence before me indicates that the child expressed a preference to remain in Australia as early as 2007 when the mother first made plans to reside in England. Since then the child has expressed strong views about remaining in Australia.
Assuming that the Central Authority had established that the child was habitually resident in England prior to her retention in Australia (which I have found it has not) the case presented by the grandparents establishes on the balance of probabilities that the child objects to being returned to England. Her objections display a strength of feeling beyond the mere expression of a preference or of ordinary wishes.
I am satisfied that the child has attained an age and a degree of maturity at which it is appropriate to take account of her views.
The Court is not precluded from ordering the child’s return to England notwithstanding her objections. However this is nonetheless a case in which the discretion of the Court should be exercised to refuse to make an order for the child’s return.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 29 April 2009
Key Legal Topics
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