State Central Authority and Trembath
[2014] FamCA 468
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & TREMBATH | [2014] FamCA 468 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – children brought to Australia by father – application by State Central Authority for the children to be returned to their mother in Canada – mother a Canadian citizen and father an Australian citizen – where both parents had travelled to Canada – where mother alleges it was a relocation – father alleges not relocation but visit for up to twelve months only – whether children were habitually resident in Canada at the time of the alleged wrongful removal – whether children had one or more or no place of habitual residence – consideration of the phrase “habitually resident” – children were habitually resident in Australia at the time of their removal from Canada – application for return dismissed. |
| Family Law Act 1975 (Cth) s 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) Reg 16, 29 Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 |
| Department of Family and Community Services & Svoboda (No. 2) [2012] FamCA 1108 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Mr Trembath |
| FILE NUMBER: | ADC | 4657 | of | 2013 |
| DATE DELIVERED: | 1 July 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 19, 20, 21, 24 Feb 2014 & 24 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Olsson |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor's Office |
| COUNSEL FOR THE RESPONDENT: | Ms Cocks |
| SOLICITOR FOR THE RESPONDENT: | Andersons Solicitors |
Orders
The Form 2 Initiating Application filed by the State Central Authority on 5 December 2013 is dismissed and removed from the active pending list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Trembath 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 ADELAIDE |
FILE NUMBER: ADC 4657 of 2013
| Commissioner Of Police South Australia (State Central Authority) |
Applicant
And
| Mr Trembath |
Respondent
REASONS FOR JUDGMENT
Introduction
The State Central Authority (“the SCA”) filed an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking final orders for S, born … 2005, and N, born … 2007 (”the children”) to be returned to Canada.
The application was brought on behalf of the mother, Ms Trembath, who currently resides in Province B, Canada. The father, Mr Trembath, is the respondent in these proceedings. The father currently resides with the children on a rural property in the Town C area of South Australia.
On 5 December 2013 the SCA filed a Form 2 application on behalf of the mother for orders pursuant to Regulation 14 of the Regulations seeking the return of the children to Canada following the father’s alleged wrongful removal of the children. The SCA submitted that the children were either habitually resident in Canada or alternatively, habitually resident in both Canada and Australia at the time of removal.
In response the father filed an Amended Form 2A on 18 February 2014 seeking to have the application dismissed alleging that the habitual residence of the children is and always has been Australia or in the alternative, that the children had no habitual residence at the time of their removal from Canada.
Background
The mother was born in Canada. The father was born in Australia.
The mother and father met in 1999 when the mother travelled to the D region in Western Australia. The parties worked together on the same property until October 1999 when the mother returned to Canada at the conclusion of her twelve month working visa.
Following the mother’s departure the parties maintained a long distance relationship before the father travelled to Canada in November 1999. In February 2000 the father proposed to the mother before returning to Australia in May 2000. The mother was granted a spousal visa in July 2000 and thereafter she followed the father to Australia where she was eventually granted permanent residency.
On being reunited the parties lived together at the father’s rural property in the Town C area of South Australia before marrying in December 2000.
In July 2001 the parties purchased Property E. The father attended to the farm while the mother obtained employment with a government agency.
Sometime in 2003 the mother informed the father she was feeling homesick. The parties agreed they would travel to Canada as often as possible for holidays and other special events. Over the course of the marriage the parties travelled to Canada on approximately eight occasions with the children accompanying their parents for three or four visits. Each trip lasted somewhere in the vicinity of three to six weeks.
S was born in Adelaide in 2005. N was born in Adelaide in 2007. The children hold both Canadian and Australian passports.
In 2006 the father’s family purchased a property adjoining Property E, a farm known as Property F. In 2008 the parties moved to Property F where the father now resides.
During 2008 the relationship deteriorated. The parties sought counselling.
Following an unsuccessful farming venture in 2012 the mother became concerned about their financial position. The parties discussed their plans for the future. It was decided the family would travel to Canada.
The mother and father informed the father’s family of their plans in April 2013 and set about making arrangements for their departure.
The mother secured twelve months unpaid leave from her employment and arranged a leave of absence from the children’s school. The father made arrangements for his younger brother to manage the farm and livestock in his absence in return for a vehicle. The father also enquired about his eligibility to obtain a Canadian work visa but decided not to pursue the application.
On 15 June 2013 the mother travelled with the children to Canada. The father attended to farming matters before joining his family in Canada on 4 July 2013.
While in Canada the family resided at a house on the mother’s parents’ property. The parties set about improving the house and surrounding land. The children were enrolled in school. The mother was able to obtain Canadian health insurance for the family. The mother obtained full time employment with a government agency in an administration role while the father, unable to work legally in Canada, made improvements to the house and assisted on a neighbour’s farm.
In September 2013 the father returned to the Town C area of South Australia for approximately two weeks to play in the Grand Final of the local football competition. While in the Town C area the father stayed at Property F and attended to general farm maintenance, including preparing the property for summer.
On 14 October 2013 the mother informed the father she did not intend to return to Australia and that she wished to separate. The father refused to return to Australia without the children. The mother refused to allow the children to leave Canada.
Without the mother’s consent or knowledge the father purchased flights home for himself and the children before removing the children’s original passports from their covers and replacing them with copies.
On Saturday 20 October the father informed the mother he was taking the children on an overnight trip to a museum in Town G, Province B when in reality he had taken them to the airport.
The mother attempted to contact the father on 20 October 2013 but received no response. At the request of the father a friend went to the mother and helped her locate a letter from the father. The letter informed the mother that the father had returned to Australia with the children.
The father and children returned to Australia on 21 October 2013 where they have continued to reside since the removal.
The Law
The Convention on the Civil Aspects of International Child Abduction (“the Convention”) sets out certain objects and principles. The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) set out the provisions to be applied when an application is made to return children from Australia to another Convention country. Canada is a Convention country, as is Province B.
Section 111B of the Family Law Act 1975 (Cth) (“the Act”) deals with the application of the Regulations.
Section 111B (1A) of the Act states:
(1A)In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:
(a)relating to the onus of establishing that a child should not be returned under the Convention; and
(b)establishing rebuttable presumptions in favour of returning a child under the Convention; and
(c)relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.
The relevant provision of the Regulations, is regulation 16 which states:
(1) If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child's removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child's return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
All parties agreed that the sole issue to be determined by this Court was whether the children were habitually resident in Canada prior to their removal by the father.
Habitual Residence
Lord Brandon in Re J (a minor) (Abduction)(1992) AC 562 at 578 stated:
…the expression "habitually resident" as used in Art 3 of the Convention is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, it’s rather to be understood according to the ordinary natural meaning of the two words which it contains.
The law in relation to habitual residence was clarified in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) when the High Court considered the principles underlying a finding of habitual residence and the method to be used in making such a determination.
It requires a “broad factual inquiry” into the “connection between the child and a particular state” (LK at [44]). The High Court quoted with approval the New Zealand Court of Appeal decision of Punter v Secretary for Justice [2007] 1 NZLR 40:
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 any 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.
As part of this broad factual inquiry it will “usually be necessary to consider what each parent intended for the child…[and]…the relevant criterion is a shared intention that the child live in a particular place with a sufficient degree of continuity to be properly described a settled” (LK at [44]).
Yet intention is not to be given controlling weight as “individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold” (LK at [28]-[29]).
When determining the habitual residence of young children the Court should look to the habitual residence of the persons upon whom the child is immediately dependent for care and housing (Re B (Minors) (Abduction) (No. 2 ) [1993] 1 FLR 993). However, one parent cannot unilaterally determine a child’s habitual residence by removing the child (State Central Authority v McCall (1995) FLC 92-629 at [25]).
Temporary Relocation & Habitual Residence
The father submitted the family had only temporarily moved to Canada and that either the children were habitually resident in Australia or that they had no habitual residence at the time of removal.
In Ustinov & South Australian State Central Authority [2008] FamCAFC 110 the parties had moved to Bulgaria. It was the father’s evidence that the intention was to move to Bulgaria “for about two years and not permanently”. The parties separated over two years later and four months after separation the father took the children without the knowledge or consent of the mother and returned to Australia. At paragraph 15 the Full Court held that the question to be identified was:
…not whether the parents and children were living in Bulgaria temporarily, but whether the parties (and children) were living in Bulgaria “voluntarily and for settled purposes”. We think it at least arguable that in rejecting any claim that the family’s residence in Bulgaria was “merely temporary” her Honour was saying no more than that it was “settled”.
At the conclusion of the hearing I asked counsel to file written submissions in relation to the Full Court decision of StateCentral Authority & Camden (2012) 46 Fam LR 583 with specific reference to the phrase “for the time being”.
In Camden (supra) the mother and father agreed to move to England “for the time being” so the children could “get to know their paternal grandparents and other family members”. Immigration departure cards completed by the father stated they were leaving temporarily and were expecting to return in five years. Prior to departure they had sold their Melbourne property “packed up all of their possessions, and shipped virtually all of them to the UK, leaving only a small number of boxes”.
The Full Court held it was clearly open to the Trial Judge to find that the mother and father had a settled purpose when they moved to the UK namely, providing the children with an opportunity to establish a relationship with their relatives:-
[50] …although the mother and father differed at trial as to what their relevant intentions had been, as we have already observed, her Honour expressly determined that the two parents had a shared intention of moving to, and living in the UK. Her Honour determined that they moved the family to the UK so that the children could get to know their paternal grandparents and other family members and she determined that their shared intention was for the children to reside in the UK “for the time being”. The evidence also establishes that the couple had no definite date planned for a return to Australia. That can only be properly described as a finding of settled purpose on the part of the parents, and that is, as has been observed, an important but not necessarily decisive factor to be considered in the process of determining habitual residence.
In allowing the appeal the Full Court emphasised that habitual residence would be determined by reference to a broad factual inquiry with the weight to be attached to each fact determined by the circumstances of the case.
The State Central Authority submits that when applying Camden to this matter, it is open to the Court to find that the mother and father had a shared intention of moving to and living in Canada.
The respondent sought to distinguish Camden on the facts, specifically the steps taken by the mother and father prior to their departure from Australia, the duration of their stay and level of integration in Canada and the family’s plan to return to Australia within 12 to 15 months. The respondent further argued that even if a shared intention had existed, it is not to be given controlling weight when determining the habitual residence of a child.
None or More Than One Place of Habitual Residence
In the alternative, the father submitted the children were not habitually resident in either Australia or Canada. Accordingly the Convention could not apply and the removal of the children would not be considered wrongful.
In LK the High Court acknowledged the possibility of a child having no place of habitual residence at paragraph 32:
…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.
Counsel for the father referred to Department of Family and Community Services & Svoboda (No. 2) [2012] FamCA 1108, in which Justice Watts held the mother had abandoned her habitual residence in Australia without acquiring a new habitual residence in the Czech Republic at the time of the children’s removal.
Also in the alternative, the SCA submitted that the children were habitually resident in both Australia and Canada at the time of removal.
While once thought to be “quite inconsistent with the entire spirit and sense of the Convention” (see In the Marriage of Hanbury-Brown (1995) 20 Fam LR 334) the concept of dual habitual residence has been considered by both Australian and English courts.
In the recent decision of In the matter ofLC (Children) (No 2 ) [2014] UKSC 1 at paragraph 63 Lady Hale stated:
Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose on habitual residence without gaining another.
While the authorities referred to above indicate that a child may have one, none or more than one place of habitual residence for reasons set out below I am not satisfied that the children were either habitually resident in both Canada and Australia, or had no place of habitual residence.
Assessment of Evidence
(a)Mother’s Witnesses
The State Central Authority relied upon the Form 2 Application which contained the basic information required for such proceedings. One of the documents relied upon by the Central Authority is the affidavit of the mother prepared for the proceedings in Canada, being the affidavit sworn by the mother on 14 November 2013. The Court also received the affidavits of the mother sworn on 11 December 2013 and 19 January 2014.
When the mother was shown the documents which she had completed when seeking leave from her employment in the Town C area, she was asked why she had made that request. Her explanation was initially she was going to resign, but it was pointed out to her that she could have one year’s leave without pay and then decided not to “burn the bridge” and so did the same thing as a friend who had taken 12 months off without pay.
During her evidence-in-chief she also indicated that when they travelled to Canada they had not made any arrangements, nor had they been required to, empty the house in which they had been residing in the Town C area.
During cross-examination she also admitted that the arrangements for the children to attend school in Canada were on the basis that they would attend for 12 months.
During cross-examination she admitted when she was shown the document that she had signed seeking leave, she had indicated that she was seeking leave because of “temporary family travel”. She also confirmed that it was her hand-writing that indicated that the family would be gone “until 21 August 2014”. Her evidence during cross-examination was that the arrangement she had made with the father when they planned the trip to Canada was that “we would reassess after 12 months how our family were doing”.
During cross-examination the mother confirmed that they had not purchased any return tickets to Australia because they did not know the exact date of their return.
Also during cross-examination the mother admitted that there had been discussions between herself and the father about purchasing another property in the Town C area when they had a meeting to discuss the sale of Property E. She conceded that the proposal to sell the property and purchase a smaller property in the Town C area was to reduce the debt. In cross-examination the mother also conceded that there were no arrangements in place at any time for letting Property E while they were away. She also conceded that the furniture and many private possessions were left behind on the Town C area property. The children’s beds were made up and the children’s rooms left substantially as had been enjoyed by the children prior to their departure.
When shown extensive photographs of the home in the Town C area she admitted that most of the children’s toys, books and other personal belongings were left behind on the Town C area property.
During her evidence, particularly in relation to the items which were retained at the Town C area property for the family, the mother appeared hesitant and nervous. Her evidence attempting to explain why these items remained on the Town C area property was unconvincing.
During cross-examination the mother agreed that the farm stock, the horses and the children’s pony had been retained on the property in the Town C area and that the only arrangements which had been made were that the father’s brother would care for them during their absence. She accepted that she had retained a car in the Town C area and that they were still paying the finance in relation to that car.
The mother was also cross-examined about remarks she had made to her employer and friends and associates prior to their travel from the Town C area. She was referred to the affidavits which the father’s witnesses had sworn which indicated that the mother had told them that she would be away for 12 months. She said that she may have said this. Her excuse was that she did not want to jeopardise her permanent residence status.
The mother denied saying that she planned to return “home”, but did admit saying that they would come “back”.
When cross-examined about the work the father had carried out on the Canadian properties, the mother admitted on several occasions that she had not actually seen, or been present, when the father carried out work which she alleged had been undertaken by him. She also admitted that one of the photographs upon which she was relying in relation to the father’s work, was in fact a photograph taken after the father had left Canada.
The mother relied upon the evidence of Ms H and her affidavit which was sworn on 14 November 2013. Her evidence was received by way of video connection prior to the mother giving her evidence. Her evidence confirms the dates of the parties arrival in Canada and the arrangements they made for the mother to work and for the children to attend school. Ms H was telephoned by the father in October 2013 asking to make arrangements for the mother to find the letter which he had left explaining to the mother that he had taken the children from Canada back to Australia.
The witness was not cross-examined.
Before the mother’s evidence the Court also received the evidence of Mr W. His evidence-in-chief was his affidavit of 11 December 2013. The witness confirmed that he was a friend of the mother. His affidavit indicated that he knew the mother’s stepfather and had known the mother since she was approximately seven years old. His evidence confirmed that the father had carried out work on the farm and that they had discussed possibilities of business ventures. During cross-examination he confirmed that the discussions were in the nature of talking about ideas and “maybe we could partner up and run more cattle and had discussions about improvements”. His evidence confirms that the father had carried out work on the mother’s parents’ property.
The evidence of the mother’s mother, Ms T was received. Her affidavit was sworn on 14 November 2013. After dealing with the objections to the affidavit material she was briefly cross-examined. Her evidence maintained that the mother had advised her that it was her intention and that of the father that they would relocate from Australia to Canada. Her evidence also confirmed that the father carried out improvements to the property in Canada.
The Court received the evidence of Mr T, the mother’s stepfather. His affidavit was sworn on 17 January 2014.
After objections to some of the material in the affidavit he was cross-examined. During this cross-examination he confirmed that the discussion he had with the father about cattle ranching in Province B was just a discussion about the possibility of raising cattle on the farm. When cross-examined about what he had observed concerning the work which the father was alleged to have done on the Canadian property his answers were vague, saying words to the effect “I just know they were busy”. Again, in relation to the allegations about the renovations he confirmed that he had had discussions with the father about this but that he had not actually observed all of the work being carried out by the father. Similarly, in relation to discussions about raising cattle in the spring, the witness conceded that it never happened but that they had had the conversation.
When cross-examined about plans of the mother and father to move to Canada, the stepfather conceded that he did not have any telephone conversations with the father himself before they arrived in Canada. He said that the family had conversations but he personally did not talk to him. He therefore conceded that two paragraphs of his affidavit were inaccurate about the time of the conversations. He further conceded when cross-examined about painting which was done on the property that he knew the father had helped paint the rooms but could not say which rooms. Again, during cross-examination about the work referred to in his affidavit he conceded that some of the items, in particular the junk which was removed from the property, had been removed after the father had returned to Australia. He also conceded that he had not seen much of the work which he alleged had been carried out by the father and conceded that he merely knew that the work had been done by somebody.
The Court received the affidavit of Mr A which was sworn on 20 January 2014 pursuant to Regulation 29. The Court was informed that the witness was “on the road somewhere in [Province I, Canada]” and was therefore unavailable to give evidence even by electronic means. He was the lease holder of the farming property owned by the mother’s parents. His affidavit consists of evidence about the work carried out on the farm and his opinion that the work created substantial improvement to the property.
(b) Father’s Witnesses
The father relied upon his affidavit sworn on 22 January 2014. He was permitted to give evidence-in-chief concerning the plans made to return to Australia. During his cross-examination he gave evidence about the work it was alleged had been carried out on the Canadian property. His evidence was that each of the matters had taken a brief time. He confirmed that the scrap had not been removed from the property before he left. During cross-examination the father confirmed that he had been on eight overseas trips in 14 years. He also gave information confirming his family’s businesses and landholdings in the Town C area. His evidence confirmed that at the time of the proposed travel to Canada they were looking at selling Property E in order to buy a smaller property. He conceded that the plans to travel to Canada were on the basis that it was in the region of 12 months “perhaps maximum 14 months” so the children could complete a school year.
He confirmed the arrangements he made with his brother to have his brother care for the property during their absence in exchange for providing a car to his brother.
His answers during cross-examination were consistent with his affidavit evidence.
His evidence was that the mother had never indicated that she had planned to resign from her employment in the Town C area but had only ever indicated she would apply for leave without pay for 12 months.
The father’s evidence was that the work he did on the Canadian house and around the property was in order to show his gratitude to her family for the accommodation they were providing during their visit. He was cross-examined in detail about the work he had carried out on the Canadian property. His evidence was convincing, particularly when he referred to the need for him to have something to do whilst the children were at school and that he agreed he did the work on the house in order to feel at ease when they were staying in the house without payment.
The evidence about the father’s work on the Canadian property and his work with Mr W, was believable and consistent.
He was cross-examined about his relationship with Ms J. He agreed that she was a friend but denied that he had been over-familiar with her and denied flirting with her. He agreed that the mother had raised this with him and he had assured her that there was no substance to any allegation of improper behaviour.
During this cross-examination he was insistent that the mother had used words to the effect that she would be coming back home after a year, particularly at a party which they had attended in the Town C area in May 2013.
The father relied upon the evidence of his brother Mr K Trembath, whose affidavit was sworn on 21 January 2014. He confirmed that arrangements had been made with his brother that he would “keep an eye on the cattle” on the Town C area property for 12 months. In exchange he had received a car worth about $5,000. During cross-examination he denied that he had ever heard any suggestion that they might not return after 12 months. He was a consistent and reliable witness and was not challenged in any way on his affidavit evidence which supported the father’s case.
The father also relied upon the evidence of Ms L, a friend of the parties. She swore an affidavit on 22 January 2014. She has a young daughter who is a similar age to the parties’ daughter S, and has known them socially.
At first the mother indicated that she would leave the Courtroom during this evidence but she then returned and sat in the back of the Court whilst the witness gave evidence. Her evidence confirmed the material in her affidavit. In particular, she confirmed that the mother had said “trust me we will be back”. During cross-examination she confirmed that she did not observe anything untoward between the father and Ms J at the football sports club function but that she had heard this from another person and conveyed it to the mother.
Although the witness appeared shy, she was not challenged in her evidence concerning the mother’s plans to travel to Canada for a 12 month trip.
The Court received the evidence of the father’s sister-in-law Ms M Trembath. She is the wife of the father’s brother Mr O Trembath and a teacher at P School in Town C. Her affidavit was sworn on 21 January 2014. She was firm and consistent in her evidence that the mother had said that the arrangement was for 12 months and not a minimum of 12 months. She also confirmed in cross-examination that the mother had said that she was looking for jobs that would be “without stress and nothing long term”. She was insistent that the mother had told her that she would “see you in 12 months”.
The witness was assertive and consistent in her evidence.
The father also relied upon the evidence of Ms Q, his sister, whose affidavit was sworn on 21 January 2014. She insisted that the mother had definitely not said that she was moving to Canada, but was going to visit Canada. She insisted that the mother had definitely said something to the effect that “I’ll be back or I will be back”. She presented her evidence in a careful, considerate way.
Discussion and Findings
I am satisfied on the evidence that the father did not at any time have any intention to reside permanently in Canada. I am also satisfied that the mother has failed to establish that the children’s habitual residence had changed from Australia to Canada. I accept that the mother may have considered the possibility of continuing to reside in Canada after, but at the time the children were removed by the father from Canada there was no shared intention for the children to reside in Canada permanently.
Whilst the children were enrolled in school for a year and had commenced some cultural and social activities, these factors, when taken in the context of the overall arrangements made by the parties, do not establish sufficient criteria for habitual residence.
The evidence before me establishes that the parties travelled to Canada and agreed that the children would attend school for a time. The evidence however does not establish that the parties made any arrangements to give up their permanent residence in the Town C area. The evidence also indicates that the father clearly intended that the visit to Canada would be limited. The mother led the father and others to believe that she and the children would be returning to live in the Town C area.
I am therefore satisfied that the father has established that the habitual residence of the children in Australia had not been lost at any time.
The State Central Authority has failed to establish that the children were habitually resident in Canada and habitually resident in Australia at the same time.
Taking into account all of the evidence, and in particular the evidence concerning factors relevant to habitual residence, I find that the father’s evidence and that of his witnesses were considerably more reliable than that of the mother and her witnesses.
In particular, I am satisfied that the father did not ever express any intention, or have any intention to reside permanently in Canada at any time. I am also satisfied on the evidence that the mother clearly expressed to significant persons her employers and friends that she proposed to take 12 months leave without pay and would return to live in the Town C area after the visit to Canada.
The evidence of the parties clearly establishes that they had not taken any steps to clear a significant amount of their belongings from their home in the Town C area, nor had they taken any steps which would indicate an intention to reside permanently elsewhere.
The work which the father did on the mother’s family’s property and on the neighbour’s property needs to be seen in the context of his explanation, which I accept, namely, that he needed something to do whilst the children were at school and that he wished to help around the family property as a sign of gratitude for the accommodation and support the mother’s family were providing them.
Conclusion
The State Central Authority has failed to satisfy the Court that the children’s removal was wrongful because their habitual residence immediately before their removal was in Australia.
The Application of the State Central Authority is therefore dismissed.
I certify that the preceding nine-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 July 2014.
Associate:
Date: 1 July 2014
0
3
0