State Central Authority and Tercel

[2016] FamCA 243

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & TERCEL [2016] FamCA 243

FAMILY LAW – CHILDREN – HAGUE CONVENTION – Habitual residence – question of whether the child had acquired habitual residence in Poland over a four month period prior to her being retained by the father in Australia – where the child’s place of habitual residence prior to her living in Poland was agreed to be Australia – where the child has previously lived in Poland for approximately two years – connection to and integration of the child into Poland considered – finding that the father  agreed to the child remaining in Poland at the time of separation – final orders made for the return of the child to Poland

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

A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1
AR v RN [2015] 3 All ER 749; [2015] UKSC 35
DJL v Central Authority (2000) 201 CLR 226
Director-General, NSW Department of Community Services & JLM [2001] FamCA 1338; (2001) FLC 93-090
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4
State Central Authority & Castillo [2015] FamCA 792
Zotkiewicz & Commissioner Of Police (No. 2) [2011] FamCAFC 147

APPLICANT: State Central Authority

RESPONDENT: Mr Tercel

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 258 of 2016

DATE DELIVERED: 18 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 9-11 and 16 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

SOLICITOR FOR THE APPLICANT: Department of Health & Human Services

COUNSEL FOR THE RESPONDENT: Mr Werner

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1. The child B born 31 October 2010 (“the child”) be returned to Poland pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) within 14 days of the date of these orders and the requesting mother notify the State Central Authority and the father of the proposed date of departure as soon as practicable upon making such arrangements.

2. Paragraph 3 of the orders made 18 December 2015 in the matter MLC 10753 of 2015 be discharged and the Registry forthwith release the child’s Polish passport and expired Australian passport to the requesting mother Ms C.

3. Pending the child’s departure from Australia for return to Poland the father, Mr Tercel born … 1973, continue to be restrained and an injunction issue restraining him from causing or permitting or suffering 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 provisions of such order;

   b)to apply for any further or other passport or passports for the child;

   c)to be removed from the State of Victoria;

   d)to reside at any other than her present residential address or any other residence at which the mother has agreed that the said child may reside when she is in his care; and/or

   e)to attend at any school or educational institution other than the school or institution at which the child is presently enrolled.

4. Paragraph 6 of the orders made 14 January 2016 be discharged.

5. Subject to paragraph 6 of these orders the Australian Federal Police retain the name of the child B born … 2010 on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia.

6. Paragraph 5 of the orders made 14 January 2016 be discharged and the child the child B born … 2010 be removed from the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia upon receipt of a letter from an officer of the Department of Health and Human Services, State Central Authority advising of the travel arrangements made for the child’s return to Poland from 12.00am on the date nominated for the said travel.

7. A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Police Forces and Services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

8. The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the States and Territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.

9. Liberty be reserved to the parties to apply on short notice to seek any further orders necessary to allow the mother or the State Central Authority to make such arrangements as are necessary to facilitate and ensure the return of the child to Poland in accordance with these orders or the implementation of these orders.

10. The Form 2 Application filed 13 January 2016 and Form 2A Answer and Cross Application filed 2 February 2016 be otherwise dismissed and removed from the list of cases awaiting hearing.

AND IT IS DIRECTED

1. That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the Subpoena Clerk at the Family Court of Australia Melbourne Registry to the person or organisation who produced same after the expiration of 30 days from the date of these orders or otherwise upon the conclusion of any appeal.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 258 of 2016

State Central Authority

Applicant

And

Mr Tercel

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By Form 2 Application filed 13 January 2016 the Secretary of the Department of Health and Community Services representing the State Central Authority sought orders pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the return of the child B, who is five years old, to Poland.

2. The requesting parent in this case is the mother Ms C, a Polish citizen who, although in Australia for the hearing of the matter, lives in Poland. The respondent to the application is the father, Mr Tercel, who is an Australian citizen and who currently lives in Australia.

3. It is submitted by counsel for the State Central Authority that the child has been wrongfully retained by the father in Australia. The father’s case is that the child was not habitually resident in Poland at the time of her retention in Australia and on that basis the child was not wrongfully retained in Australia and is not subject to the Regulations. Whether the child was habitually resident in Poland at the time she was retained by the father in Australia is the only issue I must determine and it follows axiomatically that if she were, the Court must make an order for her return to Poland.

Background

1. The father was born in Melbourne in 1973 and is currently 42 years of age. He is an Australian citizen. He is currently employed as a Manager.

2. The mother was born in Poland in 1980 and is currently 35 years of age. The mother is not in employment and has not been in employment since the child’s birth.

3. The parties met in Melbourne in January 2004. At that time the mother, who was holidaying in Melbourne, was employed as a in the service industry and lived in the Middle East. The parties commenced a long distance relationship   maintaining contact by telephone and email, visiting and living together on and off in various places in the Middle East over the next five years, eventually marrying in Country D in 2009.   

4. B was born in the Middle East in 2010. the child is both an Australian and a Polish citizen. The parties continued to live in the Middle East after the child’s birth. The father deposes at [12] of his Affidavit annexed to his Form 2A Answer and Cross Application filed 2 February 2016 (“his Affidavit”) that “... the Mother would often travel with the child to Poland during the hot summer months in the Middle East. From 2011 to 2012, the Mother and the child spent two months in Poland” and that he joined them for several weeks during this time depending on his work commitments.  

5. In or about November 2012 the mother’s mother was diagnosed with terminal cancer and in February 2013 the mother and the child moved to Poland to be with her during her illness. The father says that in January 2013, when the child was three years of age, he rented a two bedroom apartment for the mother and the child in City E and that he would travel to Poland from the Middle East and spend a week each month with the mother and the child. the child attended a private school in City E from 9.00 am until 5.00 pm Monday to Friday. The mother and the child travelled to the Middle East every six months to maintain their residency visas.

6. The mother’s mother died in April 2014 and in early November 2014 the mother and the child returned to the Middle East. the child was enrolled to commence kindergarten in the Middle East in September 2015.

7. In January 2015 the father was offered employment in Melbourne and on 24 February 2015 the father, the mother and the child relocated to Melbourne initially living in the Suburb F area where the child attended kindergarten. The parties later moved to the Suburb G area and the child was enrolled at the Suburb G kindergarten.

8. During March, April and May 2015 the parties looked for a new residence, eventually purchasing a block of land in Suburb H and thereafter settling upon a home to be built on that land. The block of land was registered in the father’s name alone because the mother had not been granted permanent residency by the time of its purchase. The father paid the initial deposit and thereafter the mother transferred money from the sale of an apartment owned by her family in Poland into her ANZ account in Melbourne to be applied either to the loan for the purchase of the land or the purchase of furniture for their new home. The parties also purchased a new motor vehicle.

9. On 15 April 2015 the mother applied for permanent residency in Australia and applied for an interim Medicare Card.

10. In May 2015 the father and mother attended an open day at I School and thereafter agreed to enrol the child at the school commencing in 2016. On 9 June 2015 they attended an interview at the school.

11. It is common ground that when the mother and the child left Australia on 16 June 2015 the child’s habitual residence was in Australia.

Mother’s Return to Poland with the child

1. The father deposes at [29] of his Affidavit that when he and the mother decided to relocate to Melbourne they had agreed that, subject to affordability, the mother and the child would travel to Poland at least once a year. They also agreed that as the child would be starting school the following year, 2015 would be the last opportunity for the mother and the child to spend a continuous period of two months in Poland during the European summer. On 16 June 2015 the mother and the child left Australia arriving in Poland on 19 June 2015. the child was enrolled in kindergarten in City E. The father spoke with the child via Facetime for approximately one hour each week during the time she was in Poland. In his Affidavit at [32] the father deposed that in or about July 2015 the mother asked if she could extend their trip until October 2015 to which he agreed.

2. Although there was until this point little dispute between the parties’ respective version of events, their evidence did start to diverge at this point. However because of the distance between them, the way in which they communicated and the benefits of modern technology, what occurred is set out in some detail in the WhatsApp and text messages they exchanged leading up to and following their separation and the crucial time frame for the purposes of these proceedings in circumstances where it is asserted by the State Central Authority that the child’s habitual place of residence changed from Australia to Poland. Although both the father and the mother were cross-examined in relation to many of these messages in most cases they speak for themselves.

3. In his Affidavit the father deposed at [34] that in or around September 2015 the mother began acting differently during their Facetime calls and said words to the effect that “our relationship is not the best for me and I want to dissolve our marriage” and at [35] that by late September 2015 he was becoming increasingly concerned that the mother had not returned to Australia with the child as had been agreed. However the father neglected to mention the lead up to the breakdown of the marriage in September 2015 which in my view puts in context the mother’s decision to remain in Poland and is relevant for the purposes of my decision as to whether the child’s habitual residence was Poland at the relevant time.

Legal Principles

1. The Regulations are the legislative foundation for the Convention on the Civil Aspects of International Child Abduction referred to for convenience in these reasons as the Hague Convention. The objects of the Hague Convention are to:

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

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

2. An application pursuant to the Regulations for the return of a child to his or her country of habitual residence is not for the purposes of determining which of his or her parents a child should live with: DJL v Central Authority (2000) 201 CLR 226; Director-General, NSW Department of Community Services & JLM [2001] FamCA 1338; (2001) FLC 93-090.

3. Regulation 16(1) provides that the court must order the return of a child if, in summary:

   (a)an application is made for the return of that child;

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

   (c)the State Central Authority satisfies the court that the child’s removal or retention was wrongful as defined in subregulation (1A).

4. Regulation 16(1A) provides as follows:

   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.

5. Regulation 16(3) provides that the court may refuse to order the return of the child if the person opposing that 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.

Procedure and Evidence

1. In this case the State Central Authority relies upon the following documents:

   ·The Form 2 Application filed 13 January 2016, the documents annexed to that application being:

   orequest for return under the Convention;

   ocopy of the requesting mother and respondent’s marriage certificate with translation;

   othe child’s birth certificate with translation;

   oauthorisation to act regarding the child dated 16 December 2015;

   oundertaking signed by the requesting mother regarding the cost of return for the child;

   oAffidavit of Law of Ms J dated 15 November 2015 regarding applicable Polish Law and its application to the mother’s Application under the Convention;

   ophotograph of the child and father;

   oAffidavit of Ms K with attachment Instrument of Authority; and

   ·The Affidavit of Ms L, Senior Solicitor of the Department of Health and Human Services, filed 16 February 2016 and the document annexed to that application, being the mother’s Affidavit sworn 15 February 2016.

2. The father relies upon the following documents:

   ·Form 2A Answer and Cross Application filed 2 February 2016, and the document annexed to that application, being the father’s Affidavit sworn 2 February 2016; and

   ·Written Submissions for the Respondent dated 16 March 2016.

3. The Independent Children’s Lawyer did not file any documents.

4. Each of the State Central Authority and the father tendered bundles of WhatsApp messages passing between the father and the mother upon which they sought to rely. Whilst it was submitted that there may have been other WhatsApp messages passing between the father and the mother other than those tendered and other communication between them including by telephone and email, both the father and the mother conceded that the WhatsApp messages they had each tendered were authentic.

5. The State Central Authority bears the burden of proving that the retention of the child in Australia is wrongful as defined in reg 16(1A) of the Regulations. If the Court determines that the child has been wrongfully retained in Australia the father bears the burden of establishing one of the grounds which would enliven the Court’s discretion not to order the child’s return to Poland.

6. The only issue in this case is whether the child was habitually resident in Poland immediately before her retention in Australia on 19 November 2015 when the father advised the mother, during a telephone call, that he would not be returning the child to her care in Poland, having issued an Initiating Application in this Court seeking parenting orders on 17 November 2015. Although the father concedes that he has retained the child in Australia without the consent of the mother, it is his case that as the child was not habitually resident in Poland immediately prior to her retention in Australia, the State Central Authority’s case that the child has been “wrongfully” retained in Australia, pursuant to the Regulations, fails.

7. The father concedes that in the event that the Court finds that the child was habitually resident in Poland immediately before her retention in Australia, the criteria in reg 16(1A) are otherwise satisfied, the application made by the State Central Authority being within the scope of the Regulations, the Court must make the order sought by the State Central Authority. The father does not assert that that there are any grounds for enlivening the Court’s discretion not to order the child’s return.

1. The standard of proof as provided by s 140(1) of the Evidence Act 1995 (Cth) is the balance of probabilities.

2. Both the mother, who had travelled from Poland for the hearing, and the father gave evidence and were cross-examined. Although the mother’s first language is Polish not English she nonetheless spoke good English, albeit at times not perfect. She was a forthright and compelling witness answering questions without hesitation. She made concessions when it was in my view appropriate for her to do so and those concessions, such as her evidence that the respondent was a good father and her evidence about his breach of her trust, confirmed my views as to the truthfulness of her evidence.

3. The father on the other hand was not a good witness. Having heard all the evidence I am satisfied that the father’s Affidavit was as noteworthy for what it did not say as what it did, asserting amongst other things that he had not given his consent to the child remaining in Poland. In cross-examination the father had difficulty reconciling his case with the evidence particularly when confronted with the various WhatsApp messages. He was hesitant but more importantly it was my observation that he was both evasive and at times disingenuous, appearing to construct an answer that would sit comfortably with the way in which he perceived he needed to put his case in circumstances where his answer in the face of the messages themselves and the other evidence was not credible. This was particularly the case with respect to his evidence about whether or not he had consented to the child remaining in Poland with the mother after he and the mother had agreed that the marriage was at an end. My observations of his evidence in relation to this issue was that he appeared to be  attempting to construct a case that in the absence of an explicit statement of consent he could not be said to have consented to the child remaining in Poland with the mother.

4. When confronted with questions he could not avoid or found difficult to answer in circumstances where that answer did not sit comfortably with his case, the father repeatedly asserted that he was an emotional wreck and not thinking logically at the time or words to that effect. Whilst I have a great deal of sympathy for any parties in the position of the father and the mother, this left me with  very little confidence in the father’s evidence and where there is a conflict between his evidence and the mother’s evidence I prefer her evidence.

Habitual Residence

1. In LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) the High Court said at [23] about the term ‘habitual residence” as follows:

   Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.

2. The High Court went on to say at [27] as follows:

   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…

3. The High Court then considered the intentions of the parties and how the parties’ intentions might be relevant for the determination of where a child is habitually resident as follows:

   [28] Although intention is a necessary element in deciding domicile of choice, and “habitual residence” is chosen as a connecting factor in preference to domicile, examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

   [29] First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous. The facts of this case provide one example of such circumstances. The mother left Israel on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return. In those circumstances, it is not possible to say that the mother then had a settled intention which was sufficiently described either as being an intention to reside permanently in Israel or an intention to reside permanently in Australia. Neither description would acknowledge the significance attached to the possibility of reconciliation.

   [30] Both before and after she left Israel she set about establishing important connections with Australia consistent with her and her children establishing the centre of their lives here rather than in Israel. In particular, before she left Israel, she registered the children as Australian citizens and procured enrolment of the two older children at an Australian private school. In Australia she soon sought and obtained Centrelink benefits, the two older children started school and the next oldest was enrolled at preschool, the older children joined a soccer club and took music lessons. Later, with the assistance of her parents and the local Jewish community, she rented and furnished a home for her to live with the children.

   [31] All of these steps (except the last) were taken before the father asked, in July 2006, for the children to be returned to Israel. All of the steps identified are consistent with, indeed support, the view that by registering the children as Australian citizens and enrolling the older ones in school before she left Israel, the mother was then set upon a course from which she did not thereafter deviate: to move to Australia unless the father decided (contrary to the then state of affairs between them) to live with her and the children.

   [32] Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left, were to that extent ambiguous. Even accepting that to be so, because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.

   [33] Second, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.

   [34] Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

   [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.

4. The High Court also cited with approval the reasons of the plurality of the Court of Appeal of New Zealand in Punter v Secretary for Justice [2007] 1 NZLR 40 discussing the earlier decision of SK v KP [2005] 3 NZLR 590 as follows:

   [88] … Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], the underlying reality of the connection between the child and the particular state …

5. I was also referred by counsel for the State Central Authority to a number of recent decisions of the English courts eschewing the proposition that a child’s habitual residence would necessarily follow the habitual residence of the parents or that one parent with parental responsibility for the child could not change that child’s place of habitual residence without the consent of the other parent and which, as did the High Court in LK, “… focussed on the situation of the child, with the purposes and intention of the parents being merely one of the relevant factors” (A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1, [54] (Lady Hale)).

6. In AR v RN [2015] 3 All ER 749; [2015] UKSC 35 Lord Reed referred in some detail to the decision of Lady Hale in A v A (supra) observing that:

   [16] … It is therefore 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.

   [17] As Lady Hale observed at [54] of Re A, habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The social and family environment of an infant or young child is shared with those (whether parents or others) on whom she is de-pendent. Hence it is necessary, in such a case, to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

   Lord Reed also said at [21] of his reasons in AR v RN (supra) as follows:

   … The absence of a joint parental intention to live permanently in the country in question is by no means decisive. Nor, contrary to counsel's submission, is an intention to live in a country for a limited period inconsistent with becoming habitually resident there. As was explained in Re A, the important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent…

7. Lady Hale in in A v A (supra) at [48] referred to the decision of the Court of Justice of the European Union in Proceedings brought by A (Case C-523/07) [2010] Fam 42 where the Court said at [69] that the concept of habitual residence must be interpreted as meaning:

   that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.

8. At [50] Lady Hale also referred to what was said by the Court of Justice of the European Union in Mercredi v Chaffe [2012] Fam 22 in relation to the need to focus on the primary carer, rather than the child where that child is an infant and quoted from [55] of that judgment as follows:

   An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where … the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard, the tests stated in the court's case law, such as the reasons for the move by the child's mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant.

9. Lord Wilson in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, observed at [39] that the degree of integration “can occur quickly” and in A v A (supra) Lady Hale declined to accept that it was impossible to become habitually resident in a single day.

10. In Zotkiewicz & Commissioner Of Police (No. 2) [2011] FamCAFC 147 the Full Court, similarly in addressing the issue of the duration of a child’s residence in a place for the purposes of the acquisition of habitual residence, particularly in circumstances where there is no settled intention and purpose, said as follows:

    80.      Beaumont and McEleavy’s text, Beaumont, P & McEleavy, P, The Hague Convention on International Child Abduction, Oxford University Press, London, 1999, has been described as the “leading treatise on the Convention” (Mozes, supra at 1072).   The learned authors opined (at 105) that “parents must exercise great care if considering whether to relocate to a different State, in particular where the relocation is itself an attempt to revive an ailing relationship”.  They went on to say, “The majority of the case law indicates that should a parent in such a situation wish to change their mind they would have to do so in the immediate aftermath of their arrival.”  For authority for the latter proposition they cited Paterson v Casse (1995) FLC 92-629 [Department of Health and Community Services, State Central Authority v Casse].  They then went on to suggest (at 107) that “ordinarily a period of six months residence should be required before a residence may be classified as being habitual”, albeit recognising that in England “the courts have, with few exceptions, adopted a very liberal interpretation of the time element required for the acquisition of a habitual residence”.

    81.      Whilst we accept there is no basis for selecting an arbitrary period such as six months, we consider there is nevertheless merit in the argument of Beaumont and McEleavy (at 101 and 108) that it is important to find a “strong and readily perceptible link” between the child and the country in which he is said to be habitually resident, as this recognises “that if children are to be linked to a State, and sent back there, they should have “a real and active connection with that place”.  Additionally, as they say (at 108), concentration on the issue of whether, from the child’s perspective, there is a “real and active connection” with the purported place of habitual residence “further serves to distinguish the concept of habitual residence from that of domicile, which can be acquired immediately”. 

Discussion

1. There is no issue that the father, the mother and the child came to Australia on 28 February 2015 intending to take up permanent residence in Australia. To that end on 15 April 2015 the mother applied for permanent residence in Australia. It is common ground that on 16 June 2015 when the mother the child left Australia for Poland the child was habitually resident in Australia.

2. There is also no dispute that when the child and the mother left Australia and travelled to Poland it was for the purposes of spending a period of two months in Poland and that it was her intention to return to Australia with the child at the conclusion of that two month period. Although in late July 2015 the mother raised the possibility of extending their stay in Poland and the mother and the father discussed changing the flights for their return, it is clear from the WhatsApp messages that it was still the mother’s intention that she and the child would return to Australia, albeit some two months later.  

3. On 12 August 2015 the mother exchanged WhatsApp messages with the father during which they discussed her love of Poland and the mother raised the possibility of remaining in Poland and she and the father living in Poland. The following day the father told the mother that he was not happy with his job in Australia and was thinking of quitting and possibly returning to the Middle East to find work. When the mother asked why the Middle East and not Europe, the father replied that he had not checked Europe out, did not have any contacts in Europe and that he had already been asked to go back to the Middle East. Over the following days there were further WhatsApp messages exchanged in relation to their relationship generally and the mother’s wish to live in Poland. I am satisfied based upon the messages the father and mother exchanged during this period that there was already some strain on the marriage and it appeared that there had been for some time.  

4. On 14 August 2015, after further discussions in relation to the father’s job opportunities, including the offer of a job in the Middle East the mother at 6.47 am said to the father “I know what I want. I just want to be in Poland”. The parties continued to communicate by WhatsApp the same day which included the following exchanges:

   7.24 am – Mother:    You do what you have to do with work.

   7.24 am – Mother:    Well then move to [Country M] and let’s talk there

   7.24 am – Father:     who will move?

   7.25 am – Mother:    You

   7.25 am – Father:      And where will you be?

   7.25 am – Mother:    In Polsnd [sic] ?

   7.25 am – Father:     So we ate [sic] already separated by the sounds of things

   7.25 am – Mother:    Or in [Country M]?

   7.26 am – Mother:    No not yet

   7.26 am – Father:     I think that if we want to see what will happen, we need to be together or at least in the same country

   7.27 am – Father:     Itvwould [sic] prefer together

   7.27 am – Father:     I would prefer together

   7.27 am – Mother:    I think I would prefer [Country M] or ME

   7.27 am – Mother:    Then Australia

   7.27 am – Mother:    Can’t stand this country and people there

   7.27 am – Father:     I know and that is clear to me

   7.28 am – Father:     Its [sic] sad but I can see that

   7.28 am – Mother:    You don’t like your job in Austrslia [sic], quit, we have only one life and move to ME and then we will join you or we come to Australia . ,

   7.29 am – Mother:    We will have to sell the land and a car

   7.30 am – Father:     I don’t want to loose [sic] us. We had something special. I think we need a simpler life

   7.30 am – Father:     Yes I know, I am already thinking to sell the land

   7.31 am – Mother:    Me too so let’s try it but not in Australia

   If we survive we will be stronger then anyone else but if we go apart, we will use all of the chances to get better

   Is [sic] that sounds like a plan?

1. The father and mother then discussed whether if he obtained employment in the Middle East the mother and the child would join him. He also said that he would make enquiries about employment in Europe. As the father and mother continued their conversation that evening the mother asked whether Country M was safe as she did not believe she could live in the Middle East. The father then said:

   7.29 pm – Father:     I know, [the Middle East] is off the list. All of middle east is off the list

   7.30 pm – Father:     [Company N] is off the list in middle east

   7.30 pm – Father:     It won’t be a real try if we are in middle east and I am travelling

   7.31 pm – Father:     So it will have to be in Europe somehow

   7.31 pm – Father:     I have started looking

   7.32 pm – Father:     Don’t know if I will find anything

   7.38 pm – Father:     But will try

2. It is clear from the messages passing between the parties that the father wanted to find alternative employment before giving his notice and on that basis they discussed the possibility of the mother returning to Australia with the child in October for one or two months, the mother being adamant that she would return to Poland just after Christmas. The father and mother agreed that they would not tell anyone in Australia that they would be leaving until after the child’s birthday (31 October). The father told the mother on 22 August 2015 that he would be booking tickets for she and the child to leave Poland on 10 October 2015, arriving in Melbourne on 16 October 2015. There were discussions that followed in late August and early September 2015 about the mother and the child returning to Poland after the father and mother’s anniversary on 15 January 2015 and their return flights to Poland being booked for early February 2016.

3. I am satisfied thereafter that although the parties did discuss the possibility of the mother and the child returning to Australia for a few months and the father looking into positions in Country M so as to be closer to Europe, giving the marriage another chance, the mother had made clear her intention not to return to Australia, that the father had agreed that they would not be living in Australia and that the mother’s preference that they live in Poland was clear.

4. The mother also gave evidence that during a telephone conversation with the father, sometime around 25 August 2015, the father committed to moving to Poland with the mother and the child after their return from Australia. Although this was denied by the father, given my reservations about his evidence and my preference for the mother’s evidence and in the context of the other evidence I accept the mother’s evidence.

5. I am satisfied that it was in that context and consistent with the mother’s evidence and a decision to live in Poland that the father asked the mother on both 24 August 2015 and again on 7 September 2015 whether she had managed to make enquiries about the renewal of his Polish ID.

6. There was also discussion around this time about what to do about the cats which they had left in the Middle East, the decision ultimately being made to have them sent to Poland. It was submitted by counsel for the father that the transporting of the cats was not relevant because it occurred prior to separation and the mother deciding to remain in Poland. Although I do not accept this submission even if it were correct  at the very least the decision to send the cats to Poland tends to confirm that Australia was by this time not an option because the parties were not going to be living in Australia and that Poland was, if not a certainty, a very real possibility.

7. I am satisfied on the balance of probabilities that although there was initially some uncertainty about where the father and mother would live with the child, they were not intending to live in Australia, that it was the mother’s preference that they live in Poland and that the father had ultimately agreed that they would live in Poland.   

8. Although the parties have agreed that at the time the child left Australia for Poland on June 2015 her habitual residence was in Australia, I am satisfied that by the time of the WhatsApp messages in August and September 2015 discussed above, the father and mother’s settled intention and purpose was that the one place that the child would not be living was Australia. On that basis it is in my view reasonable to conclude that the child, notwithstanding that she would be spending approximately two months in Australia over the Christmas period, had ceased to be habitually resident in Australia. At the very least even before the mother and father had agreed to end the marriage the thread which connected her to Australia was well on its way to being severed.   

9. In so far as it was submitted by counsel for the father that at the point of time on 11 September 2015 or shortly thereafter when it became clear that the marriage was over it would have been open to the father to engage the Hague Convention to secure the child’s return to Australia, that was not in my view necessarily the case as arguably by that time, whether or not she was habitually resident in Poland, she was no longer habitually resident in Australia.

10. However the test that the State Central Authority is required to meet is not whether the child was no longer habitually resident in Australia but whether she was habitually resident in Poland. The question remains whether or not immediately prior to the father advising the mother by telephone on 19 November 2015 that he would not be returning the child to her mother in Poland the child had the necessary connection to Poland to have acquired habitual residence in Poland.

11. Although the father and mother had agreed upon the mother and the child returning to Australia for a period of two months before returning to Poland in early February 2016, with the father to follow them after completing the term of his employment and selling the land and car they had purchased whilst in Australia, that did not eventuate. It is clear from the WhatsApp messages that by 11 September 2015 the marriage was over and that the mother and the child would not be travelling to Australia as previously planned. I am also satisfied, which is of more significance in terms of the issue I must determine, that it was not only clear to the father at that time that the mother and the child would be remaining in Poland but that the father had agreed that they should.

12. The evidence which leads me to this conclusion includes the following matters:

    a)the WhatsApp messages  passing between the parties;

    b)the absence of any attempt by the father to suggest that it was not his intention that the child should remain either in the mother’s care or in Poland;

    c)the father’s actions including in relation to his agreement to ship the child’s clothing to Poland and to pay her school fees in Poland;

    d)the father’s own evidence as to his unequivocal agreement that when they left Poland on 9 October 2015 he intended to return the child to the mother in Poland after at most two months or some lesser period if she was not coping with being away from the mother; and

    e)the father’s evidence that he had changed his mind.  

13. During the lengthy exchanges of messages the father said amongst other things that the mother should stop wasting his time and stay in Poland and not bother coming back. Although the mother conceded that she had understood the father to be referring to her not travelling to Australia with the child for the two month period as originally planned, that does not alter the fact that it is clear from the father’s statements that he understood and accepted that the mother and the child would be staying in Poland.

14. Later in that same lengthy exchange on 11 September 2015 during which the father and the mother agreed that the marriage was over the father made the following further statements:

    8.51 pm – Father:     I think that it is best that we separate, you stay in Poland and I will stay herw [sic]

    8.51 pm – Father:     Here

    8.52 pm – Mother:    Are you separating from me?

    8.55 pm – Father:     If you decide you want to really try In your heart at the marriage then come to Australia. I am saying that, if you need time to really understand if you have anything left for this relationship, then it’s best that you stay and be true when making your decision.

    8.55 pm – Father:     There is no point you comming [sic] now when you don’t know what you want.

    8.55 pm – Father:     I am not going to fight for something that you don’t believe in

    8.56 pm – Father:     I will fight if you believe in it

    8.56 pm – Father:     But not like this

    8.56 pm – Mother:    I don’t believe anymore :(

    8.56 pm – Father:     So no more to be said for now. Good bye

    8.57 pm – Mother:    I’m so sorry

    8.57 pm – Father:     I told you once I will say it again. Don’t say sorry to me. Say sorry to the child

    8.58 pm – Father:     I will cancel the tickets

    8.58 pm – Mother:    :(((( you think that its [sic] all easy for me but it’s the hardest thing ever.

    8.58 pm – Mother:    What about the child?

    8.58 pm – Father:     Well I hope you can live by your decision.

    …

    9.00 pm – Father:     I knew my heart of hearts this was coming and you would give up. And prepare myself that I would not see my babyvgirl [sic] for a long time.

    9.01 pm – Mother:    Maybe you can come now instead of [Country O] and take her for a month

    9.02 pm – Father:     I am not comming [sic] now. Indent [sic] know if any when I will come.

    9.02 pm – Mother:    What about our clothes? Winter at least?

    9.02 pm – Mother:    And autumn. I can’t afford to go and buy the child anything right now

    …

15. Several days later on 14 and 15 September 2015 the following exchange took place:

    14/9/2015, 3.44 pm – Mother:       I know I shouldn’t ask but it’s getting cooler here, we are not flying to Melbourne and I would appreciate if you could send to us at least some winter/ autumn shouse plus jackets. I have no money to buy…

    …

    15/9/2015, 5.54 am – Father:         Oh, well it’s a situation that you have created. Since you are not flying to Melbourne, I will look at sending all of your clothes.

    15/9/2015, 6.01 am – Mother:       I really appreciate that as we don’t have clothes here…

    …

16. The father’s suggestion that when he told the mother she should stay in Poland that he had not meant that the child should stay in Poland and that he had not understood that the child would be staying in Poland with the mother does not bear scrutiny. In my view the messages speak for themselves particularly in the context of the mother’s role as the child’s primary carer and the fact that nowhere in those messages, which is conceded by the father, did he suggest that the child should not remain in her mother’s care or should not remain in Poland.

17. Although counsel for the father ultimately conceded that the father had subjectively accepted that the status quo would continue in Poland into the immediate future, the father’s attempts during his evidence to distance himself from even that concession only added to my general reservations about his evidence. One example was the father’s attempts to suggest evidence in relation to his WhatsApp message to the mother that he would make arrangements to ship clothing to Poland that he was only referring to the mother’s clothes and he had not at that time agreed to the child remaining in Poland with the mother. The father ultimately conceded that it was clear that this discussion was in relation to both the mother and the child’s clothes, that he had agreed to send clothes for both of them and in fact had brought winter clothes for both the mother and the child with him when he travelled to Poland in early October 2015 in circumstances where the child was to leave for Australia a matter of a week later. I am satisfied that the reason the father brought the child’s winter clothes to Poland was because he knew and had accepted that the child would be returning to and living in Poland with the mother and would need that clothing upon her return from Australia. I reject counsel for the father’s submission that he was only doing what any responsible parent would do.

18. The father and the mother also by Whats App message discussed arrangements for the child’s ongoing schooling in Poland. On 16 September 2015 they had the following exchange.

    5.25 pm – Mother:    Today I’m going to talk to the kinder director about place for the child. Not sure if you will pay for her school. Need to know earlier so I can in case move her to a public kinder

    6.21 pm – Father:     All of the child’s schooling will be paid for. I need all invoices in English.

19. The father also asked the mother to arrange an appointment at the child’s school during the time he was in Poland. All in my view indicative of someone who had agreed to the child remaining in Poland with the mother.

20. On 2 October 2015 the mother and father also discussed the father’s ongoing relationship with the child and where he might live in the future so as to maintain that relationship.

    8.20 pm – Mother:    Are you going to move somewhere closer to the child (Europe) or will you stay on [sic] Australia?

    …

    8.22 pm – Father:     I would like to be closer to the child of course

21. The mother also exchanged messages with the father about where she and the child might live in Poland. For example on 25 September 2015 she said to the father as follows:

    5.54 am – Mother:    Hi, I know it’s too soon for you and you said that take one step at the time, but [the child] hate [Suburb P] and mentioning quite often that she has a small house not like before and can’t invite anyone plus has no toys her ( obviously no space at all)

    I’m thinking that the time when the child will be with you I can actually completely put myself in looking for a 3 beds apartment for me and her. I don’t want anything fancy like before.

    It doesn’t have to be huge but has to have a space for her toys, desk and cats

    She needs a normal environment to grow properly and the most to stop sleeping with me in 1 bed. I love it but I know it’s not really good for her mental development as she got so attached to sleeping with me already.

    I do understand, that I have created that problem but still want her to be happy at least as much as she can be. To study and To invite kids over the night alsofor [sic] the play dates etc

    I’m not sure how we going to settle all of the financial parts of the divorce and I really don’t want to push you to anything you don’t want, however, now is the best timing for me ( before work and the child extra activities) to do it and be there looking for the flat at any time and everyday

    I was thinking if possible to find something in around 500,000 pln without the furniture ( buy cheap furniture – can be IKEA ), also to have around 30,000 pln on the saving account just in case of an emergency, so I don’t have to stress and call you in the middle of the night, because something serious has happened.

    Now, when she will be with you maybe even for 2 months, will be the best timing

    I will have time to look and do notary, otherwise it will be a mission impossible for me working full time and look for the flat, picking the child up from the kinder, study with her and on the top go swimming classes or gymnastics …

    Please consider above email and think about it

    It’s very important for her and me so she has piece [sic] on her mind and fun with her friends complaining to all people that ther home it’s tiny and she has nothing there

    Thank you [Mr Tercel]

22. Although the father did not respond to this and other messages of a similar nature, which he initially tried to suggest demonstrated that he had not agreed that the child should remain in Poland with the mother, there is no dispute that when the mother asked for reassurance about him returning the child to her from Australia his response was “what kind of question is that”. Counsel for the father conceded that the father had unambiguously told the mother at City E airport that he would return the child to her care in Poland.

23. When asked by counsel for the State Central Authority why he had not returned the child the father said as follows:

    When I went to Poland my intention was to spend time with [the child] because I was lost and just wanted to spend time with her. When I landed on the ground in Australia I basically filled a void that wasn’t there before and … I started thinking clearly and I had in my mind that … all the events that took place that I didn’t come back from the holidays.

24. When he was given an opportunity by me to clarify his evidence the father said that when he landed in Australia with the child he started asking questions to ascertain what his rights might be. The father also said that he made the final decision that he would not be returning the child to the mother’s care in Poland sometime after 29 October 2015 when he had first met with his lawyers but that he had made up his mind by 10 November 2015.

25. In my view it is inherent in the father’s evidence that he had agreed to return the child to the mother’s care in Poland but that he had changed his mind, whether that was upon landing in Australia or some later date, that he had agreed that the child would live in Poland with the mother. I am satisfied that the father could have been under no illusion that it was the mother’s intention to remain in Poland with the child and I am satisfied that by his words and his actions he had clearly demonstrated his assent to that course and in those circumstances to her place of habitual residence being Poland.

26. There is no evidence of any statement or expression of intention either contained in the WhatsApp messages or otherwise by the father that would suggest that he did not understand and accept that the child would continue to live with the mother following their separation.  I am satisfied having regard to all of the evidence including the WhatsApp messages and the absence of any other evidence which would suggest to the contrary that the father understood and agreed that the child would be living with the mother in Poland, which is consistent with the history of the marriage and the mother’s role as the child’s primary carer during the marriage.

27. Counsel for the father submitted that in circumstances where the State Central Authority had not established that the father knew of his legal rights with respect to seeking the child’s return to Australia, applying the test as to acquiescence pursuant to reg 16(3)(a)(ii) of the Regulations, the Court could not be satisfied that the father had given his assent to the child’s habitual residence being Poland. Counsel for the father did not point me to any authority for that submission and I am satisfied that the issues are different and the tests are not the same. I am required in this case to determine whether or not the father gave his assent to the child remaining in Poland not as pursuant to reg 16(3)(a)(ii) whether he decided to forego his right to insist upon her return fully informed as to his rights to do so.

28. The father’s attempts in his evidence to suggest that because of his emotional state he was not capable of making a reasoned or informed decision in my view also lacked credibility and were not consistent with the evidence.

29. The father’s evidence at its highest was that he may have spoken to his counsellor in the Middle East by Skype on one occasion prior to coming to Poland. There is otherwise no evidence to suggest that the father was not capable of making the decision he made with respect to the child remaining in Poland and in my view the messages and his actions establish otherwise.

30. I have no doubt that the father was upset about the breakdown of the marriage however I am satisfied that it would have been clear to him well before the actual breakdown of the marriage that the mother’s preference was to live in Poland and there is no evidence to suggest that she was not and would not have intended to continue in her role as the child’s primary caregiver nor for that matter did he suggest otherwise. I am satisfied that in all of the circumstances the father made both an informed and reasoned decision, a decision he clearly conveyed to the mother both by his words and actions, albeit as he says, he later changed his mind.

1. Whilst I have found that the father gave his assent to the child remaining in Poland with the mother, that is only one consideration and as the High Court said in LK should not be given controlling weight.

2. It was submitted by counsel for the State Central Authority that the child’s habitual residence changed on 11 September 2015 which was the date upon which the parties decided to separate but that the Court could also look at the circumstances of the mother and the child both prior to and following that date.

3. Counsel for the father submitted in response, firstly, relying upon the decision of Bennett J in State Central Authority & Castillo [2015] FamCA 792 (“Castillo”) at [96] and [97], that the father should not be required to meet a case other than that put forward and that the State Central Authority, having nominated a particular date, had not proved its case that the child had acquired habitual residence based upon the father’s acquiescence on that date. Her Honour in Castillo was referring to the date upon which the wrongful retention was said to have occurred, which in my view requires some particularity, given that issues such as the question of a child’s habitual residence are determined by reference to that date. However in my view counsel for the father’s submission misconstrues the nature of the court’s enquiry and the decision it must make, that is whether or not the child was habitually resident in Poland immediately prior to the date of her retention in Australia by the father and the concept of habitual residence itself. Although it is possible that habitual residence might change on a particular date it is in most cases likely to be a question of the degree of the connection between the child, the subject of the application, and the state in which it is claimed that child is habitually resident.

4. Secondly counsel for the father submitted that any change in the child’s place of habitual residence could only have occurred between 11 September 2015 and 9 October 2015 when the child and the father left for Australia and that evidence of anything that occurred prior to 11 September 2015 and after 9 October 2015 was not relevant.

5. Not only did both counsel for the State Central Authority and the father place significant emphasis upon the date upon which the mother and the father separated and focus on the period between the agreed date of separation and the child’s departure for Australia on 9 October 2015, the focus in this case also tended to be upon the actions of the father and the mother and what they had done or not done that would have led to a change in habitual residence rather than focussing on the child’s connection to and the degree of her integration into the family and social environment in Poland.

6. In my view these submissions misconstrue the test the court must apply and the matters it must determine.

7. Whether it is the child’s connection to Poland, as referred to in LK, or, as the English authorities suggest, her integration into the social and family life in Poland, it is clear that does not necessarily depend upon there being a settled purpose or intention. As the High Court makes clear the child’s connections to or integration into a state may be as a result of factors unrelated to the date upon which one or both of the parties formed a settled intention to reside in the country in question. In LK the High Court referred specifically to the mother establishing connections in Australia both before and after she left Israel and before it was clear that she intended to remain in Australia.

8. Lord Wilson in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) (supra) addressing the issue of when habitual residence is lost observed at [46] that “... the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state …”. It is also arguably the case that the less integrated a child is into the old state the faster that child may achieve the requisite degree of connection or integration to the new state. That is particularly so in my view this case in circumstances where although it is conceded that prior to leaving Australia with her mother in June 2015 the child was habitually resident in Australia, she has lived the majority of her life in Poland, spending only four months in Australia.  I am satisfied that in those circumstances the child is likely to have achieved the requisite connection to Poland more quickly than if she had not previously lived in that country. There is no dispute that when the parties lived in The Middle East the mother and the child spent the summer months in Poland. In February 2013 the mother and the child moved to Poland and remained living in Poland until November 2014. the child attended a private school in Poland during this period. the child then lived with the father and mother in The Middle East from November 2014 until 28 February 2015 when she moved to Australia.

9. The family lived in Melbourne until 16 June 2015, a period of just under four months. The family initially lived in rented accommodation in the Suburb F later moving to the Suburb G area. the child was enrolled at a kindergarten in Suburb F for approximately one month and in April 2015 she was enrolled at the Suburb G Kindergarten. On the days she did not attend kindergarten she was enrolled in childcare and attended gymnastic, ballet and swimming lessons. The father has an extended family in Melbourne which included his parents, who have assisted with the child’s care since she returned to Australia with the father in October 2015, and his brother.

10. B has both Polish and Australian citizenship. When the mother and the child returned to Poland in June 2015 the child was returning to a familiar environment. Upon her return she and the mother lived in rented accommodation in City E. They had the use of a motor vehicle that the father and mother had purchased when the mother and the child had been living in Poland.  the child speaks Polish and was enrolled in kindergarten upon her return.  The mother’s step-father and her brother both live in Poland and there is also reference in the WhatsApp messages to other extended family.

11. I am satisfied having read the WhatsApp messages exchanged by the father and the mother at the time that upon arrival in Poland in June 2015 the mother and the child resumed active social lives in Poland. The mother’s messages to the father are replete with descriptions of their activities involving both extended family and friends.

12. As previously referred to, in A v A (supra) Lady Hale referred to the need to consider the circumstances of the primary carer, rather than the child when that child is an infant. Although the child is not an infant she was not yet five when she travelled to Australia with the father. There is no dispute and I am satisfied that the mother was and had always been her primary carer up to that point of time. The mother gave evidence, which was not challenged, that the child had never spent more than two nights out of her care prior to her departure to Australia. The evidence otherwise speaks for itself particularly given the fact that the child lived in Poland with the mother for almost two years with the father visiting on a monthly basis.  

13. The mother is a Polish citizen. Although she had previously applied for permanent residence in Australia that has not been granted and she now enters Australia on a tourist visa. She has friends and family in Poland. The mother lived in Australia between February and June 2015 and it is clear from the WhatsApp messages that she was not happy in Australia.  I am satisfied that at the very least the mother’s connection to Poland would have contributed to the degree and speed of the child’s integration into life in Poland.

14. In my view the child’s circumstances can be distinguished from those of a child having to settle into a new and unfamiliar environment. I am satisfied that in all of the circumstances of this case she would have very quickly integrated, or in her case reintegrated, into both the family and social environment in Poland and had very quickly acquired the requisite connection to Poland irrespective of the fact that at the time she went back it was not the intention of either her father or mother that she should reside there permanently.

15. Although significance was placed upon the date upon which the parties separated that in my view does not determine when it could be said that the child had the necessary connection to or degree of integration into her social and family environment in Poland, nor was it necessary for the mother to have either formed an intention to permanently reside in Poland or convey that intention to the father for that to have occurred. However, I am satisfied that it is more likely than not that by the time the mother and father decided to separate the child had the necessary connection to Poland and was as such habitually resident in Poland and it follows for the purposes of the determination I must make that she was so prior to her retention in Australia by the father.

16. Ultimately I am satisfied on the balance of probabilities that the child had the requisite connection to Poland, one of the relevant considerations being that the father had agreed to her living in Poland with the mother both for the purposes of a holiday prior to separation and on an ongoing basis after separation. In those circumstances I am satisfied that if not by 11 September 2015 certainly by 19 November 2015 the child was habitually resident in Poland.

17. I also do not accept counsel for the father’s submission that the time after the child left Poland was not relevant. According to the father not only did he do nothing to disabuse the mother of her belief that he would be returning the child to her care in Poland, until 19 November 2015 he also said that the child did not know of his decision to keep her in Australia. He also admitted that she had been asking about her mother and her return to Poland. In those circumstances it is likely that the child perceived herself to be on holidays in Australia and that she would be returning to her home in Poland. This of itself would have in my view only reinforced her connection to Poland.

18. I am satisfied that the State Central Authority has met its onus of proof and that the child was habitually resident in Poland immediately prior to her retention, hence that she has been wrongfully retained by the father in Australia. I am also satisfied that the State Central Authority, as conceded by the father, has met the criteria in reg 16(1A) of the Regulations in that the child is under 16 and that the mother has rights of custody pursuant to Polish law, which she was exercising at the time the father retained the child in Australia in breach of those rights. In all of the circumstances I propose to order the child’s return to Poland.

19. The mother is presently in Australia and is no doubt anxious to return to Poland as soon as possible. I propose to order the child’s return within a 14 day period but will grant liberty to apply to the parties with respect to the conditions of and arrangements for her return to Poland in the event that they are unable to reach agreement as to those arrangements. I will require the mother to notify the State Central Authority and the father of her proposed date of departure and will discharge the order preventing the child’s removal from Australia as and from that date.  

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 April 2016.

Associate: 

Date:  18 April 2016