State Central Authority and Macnevin
[2019] FamCA 961
•24 December 2019
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & MACNEVIN | [2019] FamCA 961 |
| FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – application under the Hague Convention for the return of the child to the United Kingdom – habitual residence in United Kingdom established – acquiescence established – discretion considered – application dismissed. |
| Convention on 25 October 1980 on the Civil Aspects of International Child Abduction Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 14, 16 |
| A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60 State Central Authority v Handbury [2019] FamCA 668 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Macnevin |
| FILE NUMBER: | MLC | 10526 | of | 2019 |
| DATE DELIVERED: | 24 December 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATE: | 6 & 29 November 2019; 13 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Harris |
| SOLICITOR FOR THE APPLICANT: | Department of Health & Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Jellie McDonald |
Orders
All previous orders are dismissed.
The application of the State Central Authority filed 16 September 2019 in relation to the child X born … 2018 is dismissed.
The Registrar of the Family Court of Australia at Melbourne as soon as practicable return the passport held in the name of the child X born … 2018 to the Respondent mother.
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 & Macnevin 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 10526 of 2019
| State Central Authority |
Applicant
And
| Ms Macnevin |
Respondent
REASONS FOR JUDGMENT
Preliminary
Before the Court is an application filed by the State Central Authority (‘the Authority’) on 16 September 2019 pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Regulations’). The Application was filed on a request of the International Child Abduction and Contact Unit of England and concerns the child X born in 2018 (‘the child’). X is now aged approximately one year and three months. The requesting parent is the child’s father, Mr B (‘the father’) and the Respondent is the child’s mother (‘the mother’) (hereafter collectively ‘the parents’).
The Authority sought interim orders restraining the mother from removing the child from the Commonwealth of Australia and State of Victoria; requiring the delivery of the child’s passport for safe custody to the Registrar of the Family Court of Australia at Melbourne; and a final order compelling the return of the child to the United Kingdom being her asserted place of habitual residence and being a Convention country.
The matter was listed before the Court on 17 September 2019 and ex parte orders were made as follows:-
(1) UNTIL FURTHER ORDER, the Respondent mother MS MACNEVIN born … 1983, her servant or agents be and are hereby restrained from causing or permitting or suffering the child, X born … 2018 (‘the child’):-
(a) to be removed from the Commonwealth of Australia, and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provision of such order;
(b) to be removed from the State of Victoria; or
(c) to reside at any address other than their present residential address or any other residence at which the Applicant has agreed that the child resides.
(2) The Respondent mother, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the child or upon which the child appears and be restrained from applying for any further or other passports for the child pending further orders of this Court.
(3) A sealed copy of these orders be provided to the Marshal of the Family Court of Australia and the Commissioner of the Australian Federal Police.
(4) The Applicant serve a copy of these orders upon the Respondent by personal service and as soon as practicable.
(5) Otherwise all extant applications are adjourned to 25 September 2019 at 9.30am for directions.
On 24 September 2019 the mother filed a Form 2A Answer and Cross Application response pursuant to reg 14(4) of the Regulations, wherein the mother sought that the Application filed by the Authority on 16 September 2019 be dismissed; the habitual residence of the child be declared as Australia; and that the child’s passport be returned to the mother.
On 25 September 2019 the matter was adjourned for final hearing to 6 November 2019.
Following the conclusion of a two day hearing on 29 November 2019, the Court reserved its judgment. On 10 December 2019 the mother filed an Application in a Case wherein she sought that leave be granted to re-open her case. The matter was listed for mention on 13 December 2019 and the Court made orders granting the mother leave to re-open the case. The proceedings were then further agitated as between the parties.
Statements of fact in these reasons are findings of fact on the balance of probabilities. Whilst each of the mother and father gave mostly credible evidence, on occasion their evidence differed. On these occasions, where a finding was necessary, the evidence of the mother is preferred. She gave straightforward evidence and was not selective in the provision of her evidence. The father was selective, and in particular in his omitting of material, which did not suit his purpose.
Material Relied Upon
The Authority relied upon the following:-
a)the material annexed to the Application, including:-
i)an affidavit of the father sworn 7 August 2019;
ii)an affidavit of Ms C, solicitor of England and Wales, sworn 7 August 2019.
b)affidavit of Ms D, senior solicitor, sworn or affirmed on 10 October 2019 to which is annexed:-
i)a Form 2B Reply to Answer and Cross Application; and
ii)affidavit of the father affirmed 7 October 2019.
c)an Outline of Case filed on 6 November 2019.
In addition to the Form 2A response, the mother relied upon affidavits of evidence affirmed by her on 23 September 2019, 24 October 2019 and 6 December 2019 together with tendered exhibits.
In respect of the further evidence obtained on 13 December 2019, that was as contained in the affidavit of the mother affirmed 6 December 2019 and the affidavit of the father affirmed 11 December 2019.
History
The father was born in 1978 in New Zealand. He is now aged 41 years. The father is a dual citizen of Australia and New Zealand. He is “currently unemployed” as self-described. Until February 2019 he was employed in the United Kingdom in E Town as a part-time salesperson.
The mother was born in 1983 and is now aged 36 years. She is an Australian citizen. The mother is employed on a part-time basis as a consultant in Melbourne.
The parents met in September 2011. At that time they were both living in Melbourne, Australia. The father was studying a PhD at university and the mother was working for a consultancy company. The parents commenced cohabitation in or around late 2011 or early 2012 and resided in Melbourne until approximately April 2013.
In 2013 the parents moved to Country H where they lived for 11 months. The parents returned to Australia in early 2014.
In April 2014 the parents moved to City G in the United Kingdom. The father had obtained an Ancestry Visa and residency permit, which expired in April 2019, and the mother a Tier 5 Youth Mobility Scheme Visa which allowed her to live and work in the United Kingdom for two years. In May 2014 the mother obtained employment with a consulting company, J Company, in E Town, County F. E Town is situate approximately 86 kilometres from City G. The mother commuted from City G to E Town and stayed in bed and breakfast accommodation during the working week (for some months) before obtaining rental accommodation for herself and the father in E Town.
In 2014, and following the commencement of the mother’s employment, the father discovered his mother was seriously ill. The father returned to Australia and resided in Brisbane for around three months. In late August 2014, the mother returned to Australia having made arrangements with her employer to work remotely from the employer’s Brisbane office. She remained in Brisbane for approximately two months before returning to the United Kingdom on 4 October 2014.
The father thereafter travelled frequently to Australia during the balance of 2014, throughout 2015 and into early 2016. The mother joined the father on some of these trips and for around two months in September 2015, the mother was based in Country K for work. She was able in that period to return to Australia for two weeks, visiting her family and the father’s family.
In April 2016, the parents moved from the United Kingdom to City L, the mother having secured employment there. The mother and father expected to remain residing in City L for two years. However, subsequent visa issues meant that the parents were required to leave Country M within a 14 month period. The mother’s employment was transferred back to the United Kingdom in around May 2017. This resulted in the parents moving back to the United Kingdom (and in particular E Town) in April 2017. At that time, they took up rental accommodation.
The parents had determined to commence a family whilst they were living in City L. In around April 2017, the mother fell pregnant but later miscarried. She again fell pregnant and the child was born in 2018 in E Town in the United Kingdom. The parents were each named on the child’s birth certificate as her father and mother respectively. The child was granted Australian, not British, citizenship.
On 6 December 2018, the parents purchased as joint proprietors real property situate at N Street E Town in the United Kingdom (‘N Street’). Such property was purchased with inherited monies of the father. The mother agreed, in cross-examination, that the property was one in which the parents intended to reside for the “immediate future”.[1] The parents paid stamp duty on the purchase, and for the purposes of the calculation of that duty declared the purchase to be not for investment but rather for occupation by them as their family residence. The evidence also shows that the parents had discussed buying a real property in the United Kingdom as an investment property which they anticipated renting out to tenants. Indeed they looked at properties with that idea in mind. They ultimately settled on the purchase of N Street with an intention to occupy the property for an indeterminate time into the future, but with the possibility of also being able to rent same should they choose.
[1] Transcript, 29 November 2019, p. 5 line 7.
On 2 March 2019 the parents voluntarily departed the United Kingdom to travel, firstly to New Zealand and then on to Australia. It was to be a holiday of approximately three months duration. Throughout this period, the mother was on maternity leave from her employment in the United Kingdom. Return flights to the United Kingdom for the parents and the child had been booked by the parents for a return flight to London departing Melbourne on 5 June 2019. Such return was however dependent upon both the father and the child obtaining visas to re-enter the United Kingdom. The mother had an ongoing right of re-entry to the United Kingdom by virtue of her employment.
The parents and the child arrived in Australia on 15 March 2019.
On 29 April 2019, the father applied for a dependency visa for the child to re-enter the United Kingdom. The parents and child visited the UK Visas and Immigration Office in Melbourne (‘Visa Office’) on 3 May 2019. The father was advised that he had made a mistake in his application for the child, namely, he had used the wrong visa form. The father applied for and obtained a renewed Ancestry visa for himself in late May 2019 following the parents’ separation which is referred to hereafter. The father alleges that at around this time he requested of the mother that she provide him with the child’s passport to enable him to again seek a visa for the child. The mother’s evidence is that the father did not make such a request. The mother’s evidence is preferred in respect of this fact, in particular given the contents of paragraph 26 below.
Whilst in Australia, the mother alleges and the father denies, that the parents had numerous arguments. On the mother’s evidence, they had been unhappy for some time including while they resided in the United Kingdom. Whilst staying in a rental apartment in Suburb O, the parents separated. Separation occurred on 20 May 2019. The mother and the child, who was still being breastfed at night, left the Suburb O apartment and stayed in a motel for a night, together with the maternal grandparents. The mother claimed to be fearful for her safety and that of the child. The father’s evidence was that there was no basis for such a claim and he denied it. The mother in her material alleged prior family violence. There is little corroborating evidence to support such a claim. The evidence is the mother self-reporting behaviours of the father to a health professional in County F in the months after the child’s birth. The health professional noted “the description of [the father’s] behaviour sounded potentially emotionally abusive”.[2] At the time of such reporting, the mother was receiving private counselling. The father in his material claimed the mother suffered from longstanding anxiety and mental health issues. The mother denied that allegation albeit that there is a record of her self-reporting to a health professional in County F that she had “a history of severe anxiety”. Little turns on these matters in the context of this proceeding, save that the Court accepts the mother’s evidence that the father was not entirely taken by surprise with the mother’s request for a trial separation.
[2] Exhibit ‘M1’.
On 21 May 2019, the parents met (the child was present) and discussed their separation. The mother advised the father that she and the child would stay in the home of the maternal grandparents in P Town as part of a trial separation. The father’s evidence is that he did not agree to the child’s relocation to P Town. He did agree however to spend time with the child in P Town in the period which immediately followed.
On 23 May 2019, the parents had a face to face discussion in P Town. Following this discussion, the father forwarded by way of email two proposals to the mother. He first proposed that the child and the mother remain living in Victoria, and that he would try and get a place nearby. The second option he proposed was for the parents to return to E Town. The mother advised the father by return email that she would prefer the option of remaining in Victoria, and that it was her intention to transfer her position of employment to Melbourne, at least temporarily. In that same week, the father applied for a refund of the child’s visa application earlier lodged by him as referred to in paragraph 23 above.
On 27 May 2019, the father suggested an alternative proposal that each parent spend six months in each of the United Kingdom and Australia. The mother disagreed with this proposal.
On 28 May 2019, the parents had a further face to face discussion. The father said he planned to return to the United Kingdom as he had to activate his United Kingdom visa within a short period of time. The father intended to stay in E Town and look for a job, and then split his time between the United Kingdom and Australia. The mother was shocked when the father told her this. She had anticipated his early return to Melbourne. The mother made it clear that she was not returning to the United Kingdom and would pay someone to pack up both the child’s and her belongings.
On 30 May 2019, the father spent three hours with the child in P Town and then the mother delivered the father to the train station to travel to Melbourne. It was agreed that the mother would thereafter travel to Melbourne with the child to allow the father to spend further time with the child before he departed. At that time the mother would also collect her and the child’s belongings from the Suburb O apartment.
On 1 June 2019, the father spent two hours with the child at the Suburb O apartment and then returned the child to the mother’s care at the conclusion of that time.
On 2 June 2019, the father spent two further hours with the child at the Suburb O apartment and again returned her to the mother’s care at the conclusion of that time. During the mother’s visit to collect the child from the Suburb O apartment, the mother requested that the father hand to her the child’s Birth Certificate and Citizenship Certificate so the mother could apply for Medicare. The father was fully aware that the mother wanted to register the child under the Australian health system as the mother intended to stay in Australia. The father did not indicate to the mother that he did not agree with the mother doing so, and allowed her to take the necessary documents to effect that registration. He was aware, as discovered by the parents in March 2019 upon their arrival in Melbourne, that the child was unable to be registered with Medicare unless living permanently in Australia.
On 5 June 2019, the father returned to the United Kingdom on his pre-booked flight. Prior thereto, and on 3 June 2019, he had cancelled the mother and the child’s return flight tickets to the United Kingdom and received a credit note for use within six months. He did not at the time advise the mother of his actions in his receipt of the credit note. The father’s evidence was that he did not seek to remove the child from the mother due to the child’s age and strong bond with the mother.
On 5 June 2019, and in the immediate period which followed, based on the events prior to the father’s departure, as well as further events detailed below, the mother believed that the father had agreed to and/or accepted that the child would remain permanently in Australia. Indeed, the mother acted in reliance on that state of affairs by obtaining a new job in Australia with the same company, and establishing the necessary network and care and support in Australia for herself and the child. The further events which led the mother to believe the father agreed to the child staying in Australia were as follows:-
a)the father purchased concert tickets for the mother to attend a concert on 7 September 2019 in Melbourne. They were delivered to the mother in late June 2019 and the father advised they were for the mother’s birthday;
b)on 2 July 2019 and 6 July 2019, the mother advised the father in writing that she wished to transfer her employment from the United Kingdom or resign, and that she needed to advise her employer within two weeks. She sought input from the father as to his proposals and, in particular, by inference as to what time he would spend in Australia going forward. The father did not indicate he opposed the termination of the mother’s employment in the United Kingdom. He was well aware that the mother would thereafter have no residency visa to re-enter the United Kingdom. The mother proceeded to resign from her employment in the United Kingdom on 15 July 2019. This resignation occurred prior to the father making any enquiries about a Hague Convention application and not after, as asserted by him. The mother did so on the basis the father understood she was staying in Australia, and had agreed to that course;
c)on 13 July 2019, the mother requested the father provide to her a copy of the title of the real property in E Town so she could provide it as part of an application to register for Centrelink benefits in Australia. The father agreed and provided a copy of the title as requested on 15 July 2019;
d)the father liaised with the mother as to packing up both the mother’s and the child’s belongings. He provided the mother with a website list for a freight company to facilitate the return of the mother’s and the child’s few belongings by way of WhatsApp message on 14 July 2019; and
e)on 15 July 2019, the mother requested by WhatsApp message that the father let her know his plans and timing in relation to visiting Australia as this would impact on her capacity to work. The father indicated he would not be available to care for the child in Melbourne when the mother returned to work until 1 October 2019.
From 10 June 2019, the father and mother had exchanged a series of emails and WhatsApp messages. Amongst other things, in them the father proposed that both the child and the mother return to the United Kingdom or, alternatively, that the father return to Australia for 12 months on the proviso that the child would return to the United Kingdom for the following two years. The basis of such proposals was that the child be given the opportunity to obtain British citizenship.
On 17 July 2019, the father put forward proposals that involved the parents and the child spending time in Australia for at least a year before returning to the United Kingdom, and other proposals that involved splitting the time spent by the parents and the child between the two countries.
On 17 July 2019 the mother informed the father by WhatsApp message that she would have to make an application for child support payments from the father due to Centrelink policy. The father, that same day, contacted solicitors in Australia. He had not to that time, nor since, made any payments to the mother for the support of the child.
On 19 July 2019, the father sent an email to the mother indicating that he had received legal advice and was aware of the Hague Convention. In that email, he requested the mother consider one of his previous proposals being to move the residence of the child between Australia and the United Kingdom, commencing with a year in Melbourne.
On 22 July 2019, the mother and father exchanged a series of WhatsApp messages in which the father again proposed the parents divide their time between Australia and the United Kingdom as a matter of compromise. The father also indicated he could come to Australia “for a couple of years first up”[3] provided the mother and child then lived in E Town. The mother rejected that proposal on the basis it was not in the best interests of the child to move between countries frequently.
[3] Exhibit ‘M6’.
On 31 July 2019, the mother advised the father that she had terminated her work in the United Kingdom.
On 31 July 2019, the father requested weekly Skype contact with the child, a request to which the mother readily agreed. The parents later agreed on four Skype calls each week, which before the father’s arrival in Australia in December 2019, had become twice each week.
On 5 December 2019, the father returned to Australia to take up residence for a period of up to 12 months. He has leased N Street to a friend of the parents. It is clear that he made such arrangements around the time of the proceedings being heard on 29 November 2019 and has anticipated that he will not return to the United Kingdom until the end or later part of 2020. He claims this is because the mother told him she would appeal an unfavourable decision and hence it could be many months before the child returned to the United Kingdom. This action of course also accords with one of his proposals to the mother. The father has shipped furniture from the United Kingdom to Australia.
LEGISLATION
The Convention on 25 October 1980 on the Civil Aspects of International Child Abduction (‘the Convention’) is an international agreement that covers international parental child abduction. However, it is the Regulations, rather than the Convention, which have force of law in Australia.
Consistent with the provisions of the Convention, the Regulations expressly provide for the prompt return of a child who has been wrongly removed to, or retained in, Australia, from another Convention country. A return order is not a custody determination, it is simply an order designed to restore the status quo which existed before wrongful removal or retention.
Wrongful removal and wrongful retention are separate concepts. Wrongful retention occurs when one parent agrees that a child can be taken to another country for a certain period but then the taking parent fails to return the child and the criteria under reg 16(1A) of the Regulations are satisfied. Wrongful removal is not relevant in the context of these proceedings. Not every unilateral removal or retention of a child across international borders qualifies for a return of the child pursuant to the Convention. It only applies to a removal or retention that is wrongful within the meaning of reg 16(1A) of the Regulations.
To enliven the Court’s jurisdiction to order the return of a child under the Regulations and render removal or retention wrongful, the following pre-requisites under reg 16(1A) of the Regulations must be satisfied:-
a) the child must be under 16 years;[4]
b) the child must have been habitually resident in the country they were removed from immediately prior to their removal or retention;[5]
c) immediately prior to the wrongful removal or retention, the applying parent must have had ‘rights of custody’ in relation to the child under the law of the country of habitual residence.[6] Rights of custody is defined by reg 4 of the Regulations and includes rights relating to the care of the child and, in particular, the right to determine the child’s place of residence;
d) the wrongful removal or retention of the child must be in breach of the applying parent’s rights of custody;[7]
e) the applying parent must have been exercising their rights of custody (either jointly or alone) at the time the child was wrongfully removed, or would have exercised those rights had the child not been retained.[8]
[4]Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(1A)(a).
[5]Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(1A)(b).
[6]Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(1A)(c).
[7]Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(1A)(d).
[8]Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(1A)(e).
If the criteria described above are satisfied, the Court is mandated to order return of the child to the child’s place of habitual residence, subject only to an exception enunciated in reg 16(3) of the Regulations applying.
Habitual residence
Habitual residence is a question of fact in each case. Whilst habitual residence is not defined in the Regulations, the law in relation to habitual residence has been relatively settled since the High Court of Australia decision of LK & Director-General, Department of Community Services [2009] HCA 9 (“LK & Director General”).[9] In LK & Director General, the High Court found that identification of a child’s place of habitual residence is a broad factual inquiry into all the circumstances of the case, with the issue of settled intention of the parents being only one of the relevant considerations. Thus, the court moved away from parental intention being determinative of habitual residence. However, the court observed that the past and present intentions of the child’s parents will affect the significance to be attached to particular circumstances, such as the duration of a person’s connection with a place.
[9]LK & Director-General, Department of Community Services (2009) 237 CLR 582.
English jurisprudence has similarly shifted away from joint parental intention as a predominant factor in establishing habitual residence. In A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60, the court stated that habitual residence is “the place which reflects some degree of integration by the child in a social and family environment.”[10] Shared parental intention to reside in that place is relevant but not a necessary prerequisite to the establishment of habitual residence. This aligned the identification of habitual residence with European authorities.
[10] A v A and Another (Children: Habitual Residence)(Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60, [48].
Similarly, in 2015, in AR v RN (Habitual Residence) [2015] UKSC 35, Lord Reed who delivered the judgment for the Supreme Court of the United Kingdom noted at [16] that:-
It is…the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.
The jurisprudence thus overwhelmingly demonstrates that a “wide variety of circumstances may bear on where a person…is said to reside and whether that residence can be described as ‘habitual”.[11]
[11]State Central Authority & Handbury [2019] FamCA 668, [218].
In Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, the United Kingdom Supreme Court considered the circumstances and point at which habitual residence was lost. The court held that subject children do not lose their habitual residence immediately upon removal from the jurisdiction, even where there was a settled intention they would no longer live there. Their Honours’ reasoning was that children lose their habitual residence when they achieve the required degree of disengagement from the jurisdiction. The court, relevantly, provided suggestions about the point at which habitual residence might be lost and gained:-
a)the deeper the child’s integration in the old state, the less fast is their achievement of the requisite degree of integration in the new state;
b)the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, the faster their achievement of that requisite degree of integration;
c)were all the central members of the child’s life in the old state to have moved with them, the faster the child’s achievement of integration and, conversely, were any of them to have remained behind and thus to present for the child a continuing link with the old state, probably the less fast the child’s achievement of integration is.[12]
The court described the necessary process as:-
…a composite consideration of “all the circumstances” both in the new environment and, “as a mirror image”, in the old environment in order to determine whether habitual residence has “shifted” from the latter to the former.[13]
[12]Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [46].
[13]Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [55].
The court noted further that, given the focus on integration, the developmental stage of a child is relevant in that a child’s ability to integrate must be taken into account.[14]
[14] Ibid.
Similarly, Canadian jurisprudence has adopted the ‘hybrid approach’ to determining habitual residence in which all facts of the case are considered, including:-
a)the child’s links to and circumstances in country A;
b)the circumstances of the child’s move from country A to B;
c)the child’s links to and circumstances in country B.[15]
The circumstances of the parents, including their intentions, may nevertheless be important, particularly in the case of infants or a young child.
[15]Office of the Children’s Lawyer v Balev 2018 SCC 16.
The clear trend in Convention jurisprudence is adoption of the multi-factored hybrid approach. Rather than solely assessing habitual residence with reference to parental intention or acclimatisation, a court is required to consider all relevant links and circumstances arising from the facts of the case. No single factor dominates that analysis. It is an approach which is fact bound, practical and unencumbered by rigid rules, formulas or presumptions. [16]
[16] Ibid.
Consent and/or acquiescence as an exception to mandatory return
Pursuant to reg 16(3)(a)(i) of the Regulations, a court may refuse to make a return order if the person opposing return had consented or subsequently acquiesced in the removal or retention of the child.
As outlined by the Full Court in Wenceslas & Director-General Department of Community Services [2007] FamCA 398 at [246], the defences of consent and acquiescence are distinct, although both concern the state of mind of the person who seeks the return of the child.[17] Consent has to arise before the act of removal or retention, while acquiescence can only arise after the child’s removal or retention.
[17]P v P (Abduction: Acquiescence) [1998] 1 Fam Law R 630, 631.
The evidence of consent or acquiescence may be by words or inferred by conduct, however, it must be real and unequivocal and can only be made out by clear and cogent evidence.[18] In Police Commissioner of South Australia v Temple (1993) FLC 92-365, Murray J stated, in respect of acquiescence, that it must be clear, total and unqualified.[19] That acquiescence must be clear and unequivocal was affirmed in Department of Health and Community Service v Casse (1995) FLC 92-629.
[18]Wenceslas & Director-General Department of Community Services [2007] FamCA 398, [246].
[19]Police Commissioner of South Australia v Temple (1993) FLC 92-365.
Acquiescence is not defined in the Regulations or in the Convention. In the early case of Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106, a distinction was drawn between active and passive acquiescence. Active acquiescence is signified by express words of consent or by conduct which is inconsistent with an intention by the party to insist on rights consistent only with acceptance of the status quo. On the other hand, passive acquiescence results from silence and inactivity in circumstances in which the aggrieved party may reasonably be expected to act. It is for the Court to infer from such inactivity that the aggrieved party has accepted or acquiesced in the removal or retention.
In State Central Authority v Handbury [2019] FamCA 668, Bennett J referring to the decision of Re H (Minors) [1998] AC 72, characterised acquiescence in the following terms:-
1) … the question of whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind.
2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.
3) The trial judge, in reaching their decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of weight to be attached to evidence not a question of law.
4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.[20]
[20]State Central Authority v Handbury [2019] FamCA 668, [242].
If the Court determines, after a consideration of the facts in this proceeding, that the father has consented to and/or acquiesced in the mother’s retention of the child in Melbourne, then the Court has a discretion as to the outcome of the matter thereafter, being to refuse to make a summary return order or to nevertheless proceed to make such order.
Conclusion
The Court has determined that this application should be dismissed.
The Court finds the child to have had, immediately prior to her retention in Melbourne by the mother, on 5 June 2019, habitual residence in the United Kingdom. Whilst the child was very young, being not quite six months in March 2019 when she travelled with her parents to New Zealand, she had from birth until that time resided with her parents in the United Kingdom. The parent’s intention, as but one matter, was that the child would accompany them on a holiday of three months duration before the family returned to the United Kingdom where they had purchased a home in which to reside for, at least, the immediate future. The parents intended that they would resume occupation of that home and that the mother would, in the months thereafter, resume employment in the United Kingdom. The child’s stable residence was clearly the United Kingdom. The child, on 5 June 2019, had spent approximately 10 days in New Zealand; a little over two and a half months in Australia; and almost six months in the United Kingdom. The child’s age precluded any weight being given to her social integration in any country because it did not extend beyond that provided by the parents.
The Court finds that the father consented to the mother’s retention of the child in Melbourne prior to and on 5 June 2019 and acquiesced thereafter until at least the middle of July 2019. In particular, his conduct signified his acceptance of the child remaining in Australia. That conduct included him assisting in the registration of the child with Medicare; in the mother’s application for Centrelink benefits in Australia; in the forwarding of the mother and child’s belongings to Australia; and by inference, his acceptance of the mother transferring her employment from the United Kingdom to Melbourne which he understood would produce two results:-
a)the first, a withdrawal of the mother’s visa to re-enter the United Kingdom; and
b)the second, a need for the mother to have some assistance in the care of the child which he subsequently indicated to her would not be provided by him until 1 October 2019.
It was only when the mother raised the issue of child support that the father sought legal advice, advice he could have sought at any prior time had he not acquiesced in the retention of the child by the mother.
The father did not further progress the seeking of any visa for the child after the 3 May 2019 and instead obtained a refund, post the parent’s separation, of the earlier submitted visa. This was in circumstances wherein, in particular, he had proposed to the mother that she and the child could live in Victoria.
The father’s subsequent ongoing dialogue with the mother as to proposed times spent in each of the United Kingdom and Australia for the child did not alter the fact of his consent and/or acquiescence.
The father’s words and actions were inconsistent with the now asserted right to summary return of the child as described in these reasons.
In the exercise of its discretion, consequent upon the above findings, the Court shall refuse to make the return order sought. Justice requires a dismissal of the application. Additionally, each of the parents and the child is an Australian citizen. The mother and the child have no current visa for entry into the United Kingdom. The child has financial support by virtue of the mother’s employment, Medicare and family tax benefits in Australia. Both the mother and father are now residing in Melbourne for a period of up to 12 months, and which can ultimately be any period of time given that they and their child are Australian citizens. Additionally, the child has extended family bonds and the availability of practical support from many family members in Australia, which include grandparents, uncles, aunts and cousins.
The mother would be without employment and without a current right of entry to the United Kingdom were she required to return by virtue of the child’s ordered return. She has not been able to rely, to date, on any financial support for herself and the child, from the father.
In all the circumstances, as set out in these reasons, the application shall be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 24 December 2019.
Associate:
Date: 24 December 2019