State Central Authority and Truman

[2009] FamCA 1175

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & TRUMAN [2009] FamCA 1175

FAMILY LAW – CHILDREN – Child Abduction – procedure – benefits of mediation - exceptional circumstances warranting appointment of an independent children’s lawyer - alleged wrongful retention – children not habitually resident in USA – exceptions to mandatory return considered – children’s objection to return – grave risk of harm by virtue of domestic violence – grave risk of harm to one child if separated from siblings – exercise of discretion to refuse return – application dismissed

APPLICANT: State Central Authority

RESPONDENT: Ms Truman

INDEPENDENT CHILDREN’S LAWYER: T J Mulvany & Co

FILE NUMBER: MLC 8451 Of 2009

DATE DELIVERED: 2 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 and 6 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taghdir

SOLICITOR FOR THE APPLICANT: Department of Human Services, Legal Services Branch

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J Stewart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T J Mulvany & Co

Orders

IT IS ORDERED:

1. That paragraphs 2, 3, 4 and 5 of the Order made on 22 September 2009 be and are hereby discharged.

2. That the respondent be and is hereby at liberty to collect from the Registry Manager any passports which she has lodged with the Court.

3. That the application of the State Central Authority filed 21 September and the respondent’s response thereto be otherwise dismissed.

IT IS DIRECTED that all documents produced on subpoena be returned to the person producing same.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority and Truman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8451 of 2009

STATE CENTRAL AUTHORITY 

Applicant

And

MS TRUMAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. By application filed 21 September 2009 the State Central Authority seeks the return to the United States of America (USA) of the children J born in September 1995 and P born in October 1996, pursuant to r 16 of the Family Law (Child Abduction Convention) Regulations 1986 (‘the Regulations’). The Regulations import into Australian law the provisions of the Convention on the Civil Aspects of International Child Abduction, which was concluded at The Hague on 25 October 1980 (‘the 1980 Convention’).

2. The purpose of the 1980 Convention is to provide that children who are wrongfully removed to, or retained in, Australia are returned to the Convention country in which they were habitually resident immediately prior to the wrongful removal or retention, so that appropriate arrangements can be made for the children within the legal and social framework of that country.

3. The applicant is the State Central Authority (SCA).  Mr Truman is the children’s father, at whose behest the application is made.  The respondent, Ms Truman, is the mother of the children. 

4. It is the SCA’s case that the requesting parent agreed to the children leaving the USA for a holiday but that the respondent failed to return the children when she should have and that the children have been wrongfully retained in Australia since 15 July 2009.

5. The mother filed an answer and cross application on 9 October 2009 in which she seeks that the application of the State Central Authority be dismissed.  The mother resists the return of the children (or either of them) to the USA and she contends that:-

   ·The children were not habitually resident in the USA immediately prior to 15 July 2009 and, therefore, the retention is not wrongful within the meaning of the Regulations;

   ·If the children were habitually resident in the USA and the retention is found to be wrongful, there is a grave risk that the return of the children would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation within the meaning of r 16(3)(b);

   ·If the children were habitually resident in the USA and retention is found to be wrongful, each child objects to being returned to the USA and, within the meaning of r16(3)(c), their objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that each child has attained an age, and a degree of maturity, at which it is appropriate to take account of their views.

6. The mother did not contend that the father acquiesced to the retention of the children in Australia.

7. In summary, if the SCA cannot establish that the children were habitually resident in the USA immediately prior to the mother’s retention of them in Australia, the Regulations are not engaged and the application must fail. If the court finds that the retention was wrongful and no exceptions to mandatory return apply, the court is required to order the return of the children to the USA. If the court finds that the retention was wrongful but that either or both of the exceptions apply, the court has a discretion to refuse the return the child in respect of whom I am satisfied that an exception is made out. It is conceded that an exception may apply to one child but not the other.

Evidence and the conduct of the proceedings

1. The SCA relied on the following documents:

   ·Form 2 application for commencement of proceedings under the Regulations, which includes a statement by the father and authorisation for the SCA to act on the father’s behalf, dated and filed 21 September 2009.

   ·Affidavit of Teresa Porritt, solicitor for the SCA, sworn 27 October 2009 and filed 28 October 2009, attaching an affidavit received from the requesting father dated 27 October 2009 in response to the mother’s material.

2. The mother sought to rely on the following documents:

   ·Form 2A answer and cross application filed 9 October 2009.

   ·Affidavit of Ms L, sworn 20 October 2009 and filed 21 October 2009.

   ·Affidavit of Ms M, sworn 20 October 2009 and filed 21 October 2009.

   ·Affidavit of DF, sworn and filed 21 October 2009.

   ·Affidavit of Ms E, affirmed 18 October 2009 and filed 21 October 2009.

3. The mother tendered subpoenaed documents from the Department of Immigration and Citizenship which showed the international travel movements and passenger cards relating to the father, the mother and the children from 1 January 1994 to 27 October 2009.[1]

   [1] Exhibit “M1”

4. The ICL relied upon several exhibits which were admitted into evidence by the consent of all parties.  They pertained to applicable law, including the decision of the Court of Appeals of Iowa In the Marriage of Ellerbroek 377 N.W.2^nd 257 (1985)[2], copy pages from the Iowa County Court website[3] and school holiday dates in Iowa, USA[4].

   [2] Exhibit “ICL3”

   [3] Exhibit “ICL1”

   [4] Exhibit “ICL4”

5. Pursuant to r 26 there is a report dated 15 October 2009 prepared by Mr A, family consultant.  The family consultant was a witness of the court and was cross examined by all parties.

6. No party made an application to cross examine of witness other than the family consultant, Mr A. 

7. This matter was first before the Court on 22 September 2009.  Orders were made ex parte to secure the whereabouts of the children; it was directed that the mother be served and the proceedings were adjourned to 9 October 2009.

8. On 16 October 2009, I suggested to the parties that they consider mediation and, specifically, that the applicant State Central Authority raise mediation of the entire family dispute with the father through the appropriate channels of communication.  These proceedings are only determinative of forum and, as such, are of a narrow focus.  After these proceedings are concluded, the parents will have to set about resolving or litigating parenting arrangements. I indicated to the parties that if there was any interest in mediation the court would do all it could to facilitate that mediation, including assisting with provision of a mediator, as a parallel process to these proceedings.  No party evinced any interest in mediation and no mediation occurred.  In my view, much could have been gained in this case by mediating not only the issues that arise under the 1980 Convention but also the future parenting arrangements, including where and with whom the children will live and how frequently and under what conditions they will spend time and communicate with whom they do not reside.

9. On 16 October 2009 the court made orders for the mother to file and serve any further evidence by 21 October 2009.  That time frame was set so that the documents could be sent to the father in the USA without delay and in time for him to respond.  The father was to file and serve any material in response by 26 October 2009.

10. The mother filed several affidavits by 21 October 2009.  The further material of the applicant SCA was not filed until Wednesday 28 October 2009 and comprises an affidavit sworn or affirmed by the father on 20 October 2009.  No issue is taken with the late filing of the applicant’s further material.

11. The further material upon which the SCA relies is not responsive, in a comprehensive sense, to the evidence upon which the mother relies.  By his affidavit sworn or affirmed on 20 October 2009 the father comments:-

    Under the Social Background section of [the mother’s] Cross application she has provided the court with an 18 page diatribe on a failed marriage.  To be clear, I am not seeking a reconciliation of my marriage, I am seeking the return of my children to Iowa so that custody can be determined under Iowa law where the children’s habitual residence was until [the mother] removed them to Melbourne.

    [The mother] has provided a one sided, grossly misleading and at times factually inaccurate expose on the marriage.  I am only going to focus on the aspects that I think are germane to the Hague proceeding; namely, [the children’s] habitual residence, my lack of acquiescence to their return to Australia, the accusations of domestic violence and child abuse, and my residential status in Iowa. I will not attempt to repudiate every misrepresentation however egregious unless it applies specifically to the matter at hand.

12. Absent an application for an adjournment to enable the applicant to file further material, it is irrelevant as to why the father does not respond to the mother’s allegations or to the four affidavits of evidence filed by the mother on 21 October 2009.

13. In this case, as in many cases concerning the 1980 Convention, the evidence is not comprehensive.  Gaps which can be easily filled in domestic proceedings by oral evidence and cross examination remain deficits in cases which proceed without any oral evidence.  The court must simply do the best it can on the available evidence.  This predicament was considered by Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F[5], at page 548, and gave rise to the following observations (with which I agree):-

    If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence?  It may turn out not to be crucial to the decision, thus not requiring a determination.  If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side.  That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent.  Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it.  If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case. 

    [5] [1992] 1 FLR.

14. I adopt those observations as applicable to this case. 

The appointment of the ICL

1. On 9 October 2009 the court made orders requesting the appointment of an independent children’s lawyer (ICL) pursuant to s 68L of the Family Law Act 1975 (Cth) (‘the Act’). Mr Timothy Mulvany was appointed as the ICL. Miss Stewart, of Counsel, appeared on behalf of the ICL. Section 68L(3) provides that in proceedings under the Regulations a request for appointment of an ICL should be made ‘only if the court considers there are exceptional circumstances that justify [the court] doing so.’ The court is also required to specify the circumstances relied upon.

2. The mother sought the appointment of an ICL and it was not opposed by the SCA.  Given the time constraints imposed on wrongful retention/removal matters under the 1980 Convention, if an ICL is to be appointed they must be appointed at the earliest possible opportunity.  To fail to address at the outset of proceedings the need for an ICL is to invite delay in the final determination of the matter.  As Baroness Hale of Richmond observed in Re D (Abduction: Rights of Custody) [2006] UKHL 51, proceedings are not prolonged by the appointment of a representative for the children’s interests but by one party raising the need or desirability of such representation very late in the day, as a ‘last ditch stand’ and, thereby, requiring a postponement of the trial[6].

   [6] [61]

3. It was clear from an early stage in this proceeding that the mother raised the children’s objections to return as a justiciable issue within the meaning of r 16(3)(b). The Full Court in Gamble & Director General, Department of Community Services[7] indicated that a case involving the exception under r 16(3)(c) may be an appropriate case to fit within the exceptional circumstances requirement of s 68L(3).

   [7] [2006] FamCA 140

4. The appointment of an independent children’s lawyer is also consistent with Article 12 of the United Nations Convention on the Rights of the Child (UNCROC) to which Australia is a party. Article 12 provides :

   States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

   For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with  the procedural rules of national law.

5. Re D (A Child) (Abduction: Rights of Custody)[8] concerned the objections of a young child to being returned to Romania consequent on a wrongful removal from Romania to England.  The child was only four and a half years old when the proceedings commenced and seven and a half when the matter went to a final hearing.  Baroness Hale of Richmond (with whom the balance of the presiding members of the House of Lords either expressly agreed or did not disagree) observed that courts in the United Kingdom were moving away from a restrictive approach to separate representation of children and toward the presumption[9], held within the European Union, that a child will be heard unless it appears inappropriate to do so.  Baroness Hale observed at [60] that an interview of the child by a welfare officer may well be a sufficient mechanism to obtain a child’s views in an abduction case but -

   whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which adult parties are not putting forward, then the child should be separately represented.

   [8] UKHL 51, [2007] 1 FLR 961 (‘Re D’).

   [9] Provision for this is also contained in Article 11.2 of Brussels II Revised which provides that “When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during proceedings unless this appears inappropriate having regard to his age or her age or level of opportunity.”

6. Within our own region, I note from the recent article of Judge Paul von Dadelszen[10], that the Family Court Guidelines issued by the Principal Family Court Judge for New Zealand require that the appointment of a lawyer for the child ‘shall be considered’ where any exceptions pursuant to Articles 12 and 13 are raised ‘unless the court is satisfied that the appointment would serve no purpose.’

   [10] [2009] IFL 152.

7. The court must consider what constitutes an exceptional circumstance for the purpose of s 68L(3). In R v Kelly (Edward) [2000] QB 198, Lord Bingham of Cornhill CJ, considered ‘exceptional circumstances’ in the context of imposing a life sentence for intentional wounding. His Lordship delivered the judgment of the court and stated [at page 208]:

   We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

8. Lord Bingham of Cornhill CJ’s description of ‘exceptional’ is of assistance.

9. The court has had regard to the narrative of the father provided in the application and the mother’s detailed narrative in response. The presentation of the latter satisfies me that the mother has a lot to say but an inability to direct relevant evidence to issues which require determination. This is not a less adversarial trial within the meaning of Part VII Division 12A of the Act and consequently the court does not have the power to direct and make orders about the content and source of evidence.[11]

   [11] Section 69ZX provides for the court’s general duties and powers relating to evidence

10. I am satisfied that in the circumstances,

    ·the children’s objections to return;

    ·the exercise of any consequent discretion to refuse return; and

    ·the limited capacity of the mother to formulate and press a case about habitual residence,

    amount to circumstances which, when viewed cumulatively, are out of the ordinary and justify that appointment of an ICL.

11. The role of the ICL is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what they believe to be the children’s best interests.[12]  The ICL is not a legal representative retained by the children and he cannot be bound by instructions from the children or either of them.[13]  The ICL is required to deal impartially with the parties.  The legislation requires the ICL to put any views expressed by the children before the court, analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The ICL is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings[14] and to facilitate an agreed resolution of matters in issue to the extent that it is in the best interests of the children to do so.[15]

    [12] s 68LA(2) Family Law Act 1975 (Cth).

    [13] s 68LA(4) Family Law Act 1975 (Cth).

    [14] s 68LA(5)(d) Family Law Act 1975 (Cth).

    [15] s 68LA(5)(e) Family Law Act 1975 (Cth).

12. The ICL met with the children on Monday 3 November 2009. It was agreed that the court be informed of the impressions of the ICL and I will discuss those impressions later in these reasons.

13. I am satisfied that the children have been well served by the ICL and counsel for the ICL. The ICL has no greater status than any other party to the proceeding.  However, the careful conduct of the ICL’s case necessarily curtailed the case of the mother and helped to define, rather than to cloud, the relevant issues.

1. The ICL supported the mother’s case in relation to habitual residence and the children’s objections to return to the USA.  It also supported the application of the grave risk of harm exception in relation to P if J was permitted to stay in Australia.  The ICL did not raise acquiesence.  The ICL submitted that any discretion which the court had to decline to return the children to the USA should be exercised to permit them to remain in Australia.

Standard and burden of proof

1. In Re: H & Ors [16], a case involving a wardship application, Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings.  His Lordship stated:-

   "[145]. […].The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.  Fraud is usually less likely than negligence.  Deliberate physical injury is usually less likely than accidental physical injury.  . . . Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

   Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher.  It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.  The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".

   [16] (1996) 1 All ER 1 at 16.

2. I will apply the balance of probabilities as the standard of proof.

3. In summary, the applicant SCA bears the onus of proving that the children were habitually resident in the USA at the relevant time. The mother bears the onus of proof in relation to whether the exceptions, which she contends are applicable, are made out. In the context of the exercise of any discretion to refuse to return the children to the USA, which arises in the event that an exception to return is found to exist, the parties bear the onus of proof for the result for which they contend. Whilst best interests of the child principles are applicable to the exercise of this discretion, the disposition of the matter is pursuant to Part XIIIAA – Division 2 of the Act so the principles for conducting child-related proceedings provided for in Part VII - Division 12A do not apply to this case.

4. In these reasons, statements of fact are findings of fact.

Family background

1. The children have dual Australian and USA citizenship.  The mother is an Australian citizen and a permanent resident of the USA.  The father is a citizen of the USA and of Australia.

2. The mother and father were married in Australia in 1995.  The mother was then aged 34 and the father was 48 years old.  The mother had a child, DF, then aged five, from an earlier relationship.  The couple and DF lived in Canberra where the father was employed in finance.  Later in the same year, the father was transferred to work in Melbourne, Australia and the family relocated to Melbourne.  J was born in September 1995.

3. According to the father, he became unemployed in December 1996 and was unable to find a suitable position in Australia. Consequently, in December 1996 the family moved to Virginia, USA where the family resided together for four years until August 2000.

4. In September 2000 the family returned to Australia where the father accepted employment and the family lived in Sydney.

5. In June 2003, the father changed employment to a job based in Melbourne.  The father states that the family returned to Melbourne in early 2004. According to the mother, the parties were separated for six months between June and December 2003 by virtue of she and the children remaining in Sydney whilst the father lived in Melbourne.  In either event, it is common ground that the father lived in a different state of Australia for a six month period.

6. Soon after the family moved to Melbourne in early 2004, the father was made redundant from his employment.  The father states that being unable to find employment in Melbourne or Australia, he undertook a series of trips to the USA and Asia, during which time he was in regular contact with the children and made several trips back to Australia, sometimes for several months.  The records produced on subpoena by the Department of Immigration and Citizenship (‘DIAC’)[17] show that the father departed Melbourne from 14 to 17 January 2004; 29 February to 7 March 2004; 7 to 11 June 2004; and from 1 to 22 September 2004.

   [17] Exhibit “M1”

7. The mother states that the father was fired from his job in Melbourne and wanted to move to the USA but she would not agree to do so due to how ‘awful’ it had been the previous time (in 1996 to 2000). According to the mother, the father left the family from August 2005 until November 2005 to live in Texas, during which time the parties were separated. DIAC records show that the father departed Australia between 10 and 26 January 2005 and 29 September to 20 October 2005.  These dates do not correspond with the mother’s allegations.  At the hearing the mother agreed that the father left on 29 September 2005 rather than in August 2005.

8. During this period, the mother transferred $176,000 from their joint bank account to her own bank account and used those funds to purchase a home in an eastern suburb of Melbourne in her name.  The family had been living in rental accommodation in the vicinity of that suburb.  The father deposes to the mother effecting the purchase without his knowledge or consent.  The mother deposes that she purchased the eastern suburbs home in August 2005 for her and the children to live due to the marital separation.  She and the children moved into it in December 2005 once the settlement was finalised.  The mother states that the father had shown her a statement for one of their joint bank accounts with a balance of almost $175,000 in it and said ‘this is your money, for the family.’[18]  The father refers to the eastern suburbs home as an ‘investment property’.  From completion of the purchase of the property to date, the mother and children have resided in the eastern suburbs property for all of the time they have been present in Australia.  I do not accept the characterisation of the eastern suburbs home as an ‘investment property.’

   [18] Form 2A of the mother filed 9 October 2009, pg 16.

9. The mother alleges that from December 2005 until February 2006, the family lived together in Melbourne and this period was relatively happy.  That appears to be the case.  Accordingly, I doubt the accuracy of the mother’s evidence that she and the father were separated in late 2005.

10. The father left Australia to look for employment in the USA on 17 February 2006.  He lived in Virginia from February to September 2006.  He was in Australia from 9 to 27 September 2006 and then travelled to Iowa, USA where he has lived since.

11. The father states that on 22 December 2007, the mother and children arrived in Iowa where they moved into a home purchased in the joint names of the parents.  DF, then around 18 years old, remained in Australia and continued his studies.  According to the mother, the family lived together in Iowa from January 2008 until June 2009.

12. The applicant contends that on 22 December 2007 the children moved to Iowa and unconditionally adopted it as their home.  However, the mother contends that the children went to Iowa so that she and the father could try to reconcile their relationship but would be able to return to Australia if the reconciliation failed.  Whether the children adopted Iowa as their permanent home in December 2007 or at any time subsequent to that is a critical issue in this case.

13. In summary, J and P have always lived with the mother.  There have been two periods when the father has moved interstate or overseas and resided separately from the children and the mother.  The first occasion was from June 2003 to December 2003 (or January 2004 according to the father) when the father left Sydney and moved to Melbourne.  The second occasion was in February 2006 until December 2007 or January 2008 (according to the mother) when the father left Melbourne and went to the USA first to Virginia for seven months and then to Iowa.

Habitual residence

1. The Regulations in relation to mandatory return apply only if the children were habitually resident in the USA immediately prior to the mother’s retention of them in Australia on 15 July 2009. There is some scope for the date of wrongful retention being 2 July 2009. However, when pressed to nominate one particular date, the applicant nominated 15 July 2009 and nothing in anyone’s case turns on the date being 2 or 15 July 2009.

2. Habitual residence is a question of fact in each individual case.

3. In the recent case of LK and Director-General, Department of Community Services[19] the High Court considered the determination of habitual residence. The Court makes two preliminary observations regarding the criteria for determining a child’s place of habitual residence.  First, there is a wide variety of circumstances that bear upon where a child resides and whether that residence is habitual.  Second, the past and present intentions of a child’s parents will affect the significance to be attached to particular circumstances, such as the duration of a person’s connections with a place of residence.

   [19] [2009] HCA 9 (11 March 2009).

4. Regarding intention, the High Court notes that a parent’s intentions will usually be relevant, but not necessarily determinative of habitual residence. Furthermore, the Court notes that a person’s intentions may be ambiguous.  In the case before the High Court, the mother had left Israel with the children on the understanding that if she and the father reconciled they would return to Israel, but if they did not reconcile she and the children would remain in Australia.  The High Court found that it was appropriate to have regard to the steps the mother took before and after her arrival in Australia as supporting the mother’s argument that it was her intention to move to Australia unless the marriage reconciled.  The High Court draws several points from the ambiguities of the parents’ intentions:

   [32]…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]Secondly, 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.[20]

   [20] [32-34] (emphasis in original).

5. Following the above discussion, the Court unanimously concluded that a closed set, or a hierarchical set, of criteria would not assist in making a decision which could potentially fall into a very wide range of circumstances.  The principles expressed by the High Court are binding on this Court.

6. As indicated, the applicant SCA bears the onus of proving that J and P were habitually resident in the USA before they were retained in Australia on 15 July 2009.  The SCA contends that:-

   ·the children entered the USA in December 2007 in furtherance of the joint intention of the parents that the family would live permanently in the USA;

   ·the trip to the USA in December 2007 was not to permit a reconciliation of the marriage because the parents were not separated;

   ·the numerous moves and periods spent by the father living remotely from the children and the mother were ‘part of the normal movements and way of life of this family’ which frequently relocated to the proximity of the father’s employment;

   ·notwithstanding that from time to time the father lived in another country or state to the mother and the children, the  parents’ marriage was intact.

7. The mother’s case is that she only agreed to move to Iowa with the children in December 2007 on a trial basis and to see if the parents’ marriage could be reconciled.  She maintains that she and the father then agreed that she would return to Melbourne with the children if the reconciliation failed.  The mother deposes that she did not sell the house in the eastern suburbs, but rather leased it, for this purpose.  She deposes that she left the refrigerator, washing machine and dryer in the house so that they would be spared the expense in the event of return.  It was agreed that the mother’s other son from a previous relationship, D, would remain in Melbourne to attend University.  She maintains that she and the children lived in Iowa for one year and five months rather than two years and that their permanent return to Australia was always contemplated in the event that the parents’ relationship was not reconciled.

8. The SCA contends that the acquisition by the father and the mother of a family home in Iowa in both their names is indicative of an intention for the children and the mother to remain permanently. However, the mother deposes that it was financially more attractive to acquire rather then rent residential real estate in Iowa,[21] and that she insisted she be a registered owner of the property so that the father could not evict her. There is no evidence in response from the father.

   [21] Page 19 of the mother’s cross application file 9 October 2009

9. Counsel for the ICL submitted that the position of the SCA appears to be unsupported by evidence from the father.  Specifically, counsel for the ICL pointed to some of the factual allegations of the mother which were supportive of the proposition that marital separations, rather than remote living, occurred.  These included the following matters from the mother’s evidence in the cross application filed 9 October 2009, none of which were specifically denied or responded to by the father in his affidavit made on 20 October 2009:-

   ·That the parents last had ‘marital relations’ on 18 February 2006 (page 16);

   ·That the mother was aware that, subsequent to leaving Australia in  February 2006, the father was having sexual relations with other women (page 16);

   ·That as at September 2007 ‘we had been separated for a year and a half … and were discussing our divorce. ….. [The father] had been sending me child support in accordance with the statutory formula for the past 6 months’ (page 18);

   ·"That ‘[The father] promised that if it didn’t work out, we could always return to our home in Melbourne. He acknowledged that this was a “high risk venture” (his words), given our history. He even suggested in an email that I should have our furniture put in storage so that it would be there in case things did not work out between us and we returned’ (page 19, emphasis in the original);

   ·After the parent’s earlier reconciliation, the father had complied with the mother’s request for an AIDS test. The incidence of various transmitted diseases in this case is significant because, the mother deposes, she had contracted genital herpes from the father and considered that, with the exception of the father, she could never have another sexual partner;

   ·That the mother ‘asked [the father] to arrange his AIDS test before I arrived so that we could resume normal marital relations’, and upon arriving in Iowa was disappointed to learn that the father had not undergone the AIDS test (page 20).

10. The father deposes to the mother obtaining permanent residency prior to December 2007 as the mother having demonstrated a clear intention to live and work in the USA on ‘something more than a temporary basis.’  Similarly, he states that the mother’s actions in renting out her home, selling the family car, disposing of furniture and shipping personal possessions to Iowa evinces her intention to remain in the USA.[22]

    [22] Page 1 and 2 of requesting parents affidavit of final arguments annexed to affidavit of Terese Porritt sworn 27 October 2009.

11. The father’s response is largely argumentative and, most significantly, does not address the factual matters deposed to by the mother.  It was submitted by counsel for the ICL that the mother’s application for permanent residency and her subsequent green card are entirely consistent with a bona fide attempt to reconcile the marriage and integrate into the community without pointing to the mother and children having relinquished Australia as a place of habitual residence.  Furthermore, counsel for the ICL submitted that the mother’s explanation for having disposed of furniture because it was old is plausible and that her decision to rent out, rather than to sell, her Australian property was consistent with an intention to preserve the residence for her own use in the event that she and the children decided to return to Australia.  I accept the submissions of the ICL.

12. The mother filed various affidavits on 21 October 2009 in support of her contention that she moved to the USA on a trial basis.

13. Ms L, property manager, deposed to her understanding that the mother went to Iowa in 2008 ‘with the intention of returning (sic) her home in Melbourne if her marital situation did not improve.’ Ms L was the letting agent who handled the lease of the mother’s eastern suburbs property.  She also deposes to being instructed by the mother in March/April 2008, November 2008 and April 2009 to require the tenants to vacate the property in anticipation of the mother and children returning to Australia.  Ms L deposes to the mother having rescinded the two earlier instructions.

14. In her affidavit affirmed 18 October 2009, Ms E deposes that the mother advised her in late 2007 that she intended to move to Iowa with the children in an attempt to reconcile with her husband but that she would not sell her eastern suburbs property in case the reconciliation failed and she needed to return to Melbourne.

15. The mother’s eldest child, DF, deposes that the trip to Iowa was represented to him by the mother and the children as a trial.[23].

    [23] Affidavit of Mr DF sworn 21 October 2009, paragraphs 3 to 5 inclusive

16. It was submitted on behalf of the ICL that I could accept the witness’ evidence as corroborative of the mother’s evidence that she went to Iowa whilst preserving a safety net in Australia for herself and the children in the event that the reconciliation of her marriage failed.  As indicated, the father did not respond to any of the witness’ affidavits.  I conclude that the father’s evidence would not have assisted the applicant’s case and I accept the submissions of the ICL.

1. The SCA contends that the relocation of the mother and children to the USA in December 2007 was not pursuant to a trial reconciliation (a term of which was that she and the children could return to Melbourne if the reconciliation failed) or, indeed, pursuant to any reconciliation at all.

2. The first contention of the SCA is that the parents were not separated. It was submitted that they had their ‘ups and downs’ and lived from time to time in different continents but that was attributable to the father’s work commitments and did not constitute any estrangement in the marital relationship. The father deposed:[24]  

   My career has made it necessary for the family to move often and to live in both Australia and the United States. Since being married, we have lived in Canberra, Australia; Melbourne, Australia: […], Virginia (December 1996 to August 2000); Sydney, Australia; […], Iowa. Most recently, respondent and the children moved to the United States in December 2007.

   [24] Affidavit of requesting parent made 26 August 2009 attached to the applicant’s application filed 21 September 2009, paragraph 5,

3. The submission of the SCA appears to an extrapolation of the above evidence. The father does not explain why the family was not together from February 2006 to December 2007.  He submits lengthy affidavit material but does not respond to the specific allegations about he and the mother discussing an application for a divorce.  Given the mother’s specific evidence as to separations and estrangements and the lack of evidence in response from the father, I cannot accept the assertion of the SCA over the evidence of the mother.

4. The second contention of the SCA was that, even if I am satisfied that the mother’s intention as at December 2007 was that she and the children remaining in Iowa was contingent upon a successful reconciliation of the marriage, that intention was never communicated to the father.  It was submitted that in December 2007 the father believed that the mother and children had relocated to Iowa unconditionally and permanently.  The father deposed directly to that state of mind.  I accept that in this context the necessary intention must be an open (not secret) intention and that the mother could not succeed on this point if she had misled or deceived the father about her motivations or plans.  However, the available evidence does not support the contention of the SCA to the effect that the mother’s alleged intention is a recent fabrication or that any such intention was concealed from the father.  The father does not respond directly to the specific allegations made by the mother in her sworn material.  He merely refers to the mother having obtained permanent residency and a green card which, on the circumstances of this case, I find to be equivocal.

5. The third contention of the SCA was that the mother’s assertion of a trial separation must fail because she and the children remained in Iowa for some 18 months which is ‘too long’ for a trial reconciliation.  It was conceded by counsel for the SCA that, absent express statements, there is no minimum or maximum period of time for a trial reconciliation.  Counsel for the ICL submitted that, whilst 18 months seems like a long period, in the circumstances of this case, it was not too long to be credible.  Counsel for the ICL referred to the fact that the children arrived in December 2007, which was mid way through the USA school year, and left at the end of their first completed academic year.  Relevantly, the father deposes that ‘my wife, [the mother], has consistently expressed her unhappiness in living in [Iowa].’[25] The mother’s evidence is corroborated by the evidence of DF, Ms L and Ms M and Ms E.  I accept the submission of the ICL that, in all the circumstances of the case, it is reasonable to construe the evidence as supporting the contention of the mother that her time in Iowa was part of a trial reconciliation.

   [25] Par 7 of draft affidavit prepared for the requesting parent in support of proposed divorce application, page 15 of affidavit of Terese Porritt sworn 27 October 2009

6. I also have regard to the circumstances of the children’s departure from the USA on 7 June 2009 and the mother’s stated intention on 2 July 2009 to retain them in Australia permanently.

7. In the father’s initial affidavit sworn in support of his request for return, he states that at no time prior to the removal of the children was he informed by the mother that she did not intend to return the children.[26]  In response, the mother deposed that she was unable to speak to the father about leaving Iowa to return to Melbourne because the father had refused to speak with her since 2008 and, whenever the subject was raised he ‘would either run into his study and shut the door to keep me out or shout at me very aggressively “Are you trying to pick a fight?”’[27]  The mother states that the father was invited to return to Australia to live together with her and the children but that he refused.

   [26] Par 15 of the Affidavit of Parent Requesting Return to Country of Habitual Residence sworn/affirmed by father on 26 August 2009, page 17 of application initiating proceedings filed 21 September 2009

   [27] Form 2A of the mother filed 9 October 2009, pg 4.

8. The mother alleges that prior to her departure, the father constantly challenged the children about leaving him all alone in Iowa and on the night before their departure he removed car ownership documents from her luggage and said to her: ‘You might be able to take my kids away from me but I’m not helping you and I’m not paying for it.’ [28]  The father did not respond to this evidence.

   [28] Page 23  of the mother’s cross application filed 9 October 2009

9. The father’s evidence is that the mother’s trip to Australia was portrayed to him to be a five week holiday in Australia to visit friends and family and that they were due to return on 15 July 2009.  However, the mother deposes[29] to having paid for a return journey because there was a promotional offer and return tickets were cheaper than one way tickets.  The father does not respond directly to the mother’s assertion in this regard.  In the father’s affidavit in response, he deposes to having been concerned that the mother ‘might be contemplating taking [the children] to Australia against my wishes and I raised this with [the mother] and the children repeatedly before they left.’ [30]  In particular, he verified the return reservations for the children and asked the children to promise that they would return.  He deposes to having told the mother that he ‘would seek the children’s return through the Hague Convention if she did not return’ and to having provided instructions to an attorney for an order restraining the mother.

   [29] Page 22 of the mother’s cross application filed 9 October 2009

   [30] Attached to affidavit of Teresa Porritt sworn 27 October 2009.

10. The father also annexed part of a draft affidavit or statement of evidence which was drawn in support of the request (with which he did not proceed) for an order prohibiting the removal of the children from the USA. Relevantly, the draft of evidence reads as follows:-

    7.My wife [the mother], has consistently expressed her unhappiness in living in [Iowa].  She recently told me that she would be taking the children to Australia as soon as the school break in mid-December 2008.  I told her I did not agree with this proposal, but she was not interested in discussing it with me and told me the decision was hers to make.

    8.My concern is that the children going with [the mother] to Australia, is not in their best interests.  My ability to visit them would be limited.  I believe that the children are better served by remaining in the [local Iowa] area to finish out their schooling here.  My children have expressed to me that they are very happy living here in the [local Iowa] area.  I believe it is an important decision as to where the children should reside, and one that should not be made hastily or by one parent unilaterally.

    9.[The mother] has many attachments to Australia, including two brothers and two sisters, and her mother.  She also has a home she purchased in [Melbourne], Australia, and a home in Canberra, Australia.

    10.My concern is that if [the mother] takes the children to Australia at the conclusion of this school semester, we will not have an opportunity to make an in-depth and thoughtful determination of what is in the children’s best interests. To be able to do this after a move would be logistically difficult.

    11.I believe that the children’s move should be determined only after thoughtful consideration for how they can have contact with both parents, receive a quality education, and continue to thrive.

    12.[The mother] has expressed to several of her co-workers that she is intending to leave and, to the best of my knowledge, she has turned down a work opportunity to continue with [C Organisation] in the spring semester.  There is no urgency for her to relocate at the end of the semester as she has threatened.  She can continue to keep status quo for the children until this matter can be heard by the Court.

11. The father’s final evidence on the issue (extracted in the preceding paragraph) satisfies me that the father held real concerns about the mother’s intention to return the children to the USA to the extent that he acted upon those concerns.

12. It is common ground that the permanent return of the children to Australia was not addressed in direct conversation between the mother and the father. Nonetheless, the evidence of both parents, and particularly the father, leads me to conclude that prior to the children’s departure from the USA the retention of the children in Australia by the mother was a matter which was within the contemplation of both parties.  I am not satisfied that the father agreed to the children residing in Australia permanently but his evidence indicates that it was an eventuality which he contemplated.  I regard this evidence as being somewhat supportive of the mother’s allegation that it was contemplated by all that she and the children would return to Australia in the event that the marital reconciliation failed.

13. I also have regard to the comments of the children contained in the Regulation 26 report in relation to the basis upon which they travelled to Iowa.  The family consultant described J as saying that she had felt positive about the prospect of moving to the USA.[31]  J spoke openly about her mother’s decision to relocate to the USA as an attempt for her parents to reconcile their marriage.  She stated that she believed her father was aware of her mother’s decision to return to Australia, and upon finding out the father stated ‘please give me another chance’ and claimed that he would try to be ‘nicer and more friendly.’

    [31] Regulation 26 Report dated 15 October 2009, par 18

14. I accept that J perceived the relocation to Iowa in December 2007 was due to her parents’ attempt to reconcile their relationship and that the return of her mother, herself and her brother to Melbourne in June 2009 was because the reconciliation failed.  I do not lose sight of the fact that the attribution of a place of habitual residence to children is a construct which is necessary for the operation of the 1980 Convention.  The younger the child the more it is that the construct must come into play because young children do not form intentions to reside permanently in one location.  J is not a young child.  Where, as here, a child evinces a state of mind which is relevant to where she thought she would be residing in the future, I have regard to it.

15. I take into account the fact that J’s descriptions to the family consultant were four months or so after having arrived in Australia and in circumstances where she wanted the family consultant to conclude that she objects to returning to the USA.  However, her account has an internal consistency to it and the family consultant was firm in his view that J communicated calmly, openly and had an ability to support views by reference to her personal experiences and perceptions rather than as a child who had been primed or unduly influenced to adopt views consistent with the position of the mother.

16. I am unable to accept the contention of the SCA that the mother and children travelled to Iowa in December 2007 to reside permanently and that the mother now seeks, disingenuously, to characterise her time as temporary and her obligation to remain as contingent upon an intact marriage in order to avoid the operation of the Regulations.

17. I have referred above to the unanimous decision of the High Court in LK[32] in which it was held that the establishment of habitual residence involves a search for the connection between the child and the requesting state in which it is alleged the child was habitually resident immediately before the wrongful retention (or removal). Oftentimes habitual residence is conceded but, even if it is contested, the fact of the matter might be easily discernable and the enquiry will be contained to narrow proportions. However, this is not such a case. The present proceeding has required an extensive factual enquiry which, chronologically, predates the alleged wrongful retention (July 2009) by approximately two years and well prior to December 2007. In my view, an examination of that breadth was necessary in order to determine whether the provisions of the 1980 Convention (and the Regulations by which it is implemented) are properly engaged by virtue of the children’s place of habitual residence being the USA immediately prior to the alleged wrongful retention. That is not always going to be the case but on the unusual facts of this case, it was. As the Court of Appeal of New Zealand said in Punter[33]:

    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 para [22], the underlying reality of the connection between the child and the particular state.

    [32] Par [44]

    [33] [2007] 1 NZLR 40 at 61-62[88] and extracted in the reasons of the plurality in LK at par [44]

18. I am satisfied that the connection of the children to the USA was that they accompanied the mother to Iowa for the sole purpose of the mother attempting to reconcile her marriage to the father.  But for the trial reconciliation, the children would not have journeyed to Iowa in December 2007.  I am satisfied that it was understood between the parents that, if the marriage did not work, the children and the mother would return to Melbourne. That might not have been the father’s most sought after position but it was the basis upon which the mother agreed to take the children to live with the father in Iowa.  I am satisfied, on the evidence and to the appropriate standard of proof, that the mother would not otherwise have packed up and taken the children to Iowa.

19. The evidence relied upon by the SCA does not support its contentions that the move of the mother and children to Iowa was absolute.  The fact that the mother and the children sought to live life fully in Iowa does not constitute abandonment by them of Australia as their place of habitual residence.  Not every case can be distilled by reference to neat shared parental intention. Sometimes, like here, the motivations and intentions of the parties involve a degree of ambiguity and an examination of many past events.  However, I am satisfied that, when the children accompanied their mother to the USA in December 2007, they effectively put their life in Australia ‘on hold’.  That is, the children (and the mother) retained Australia as the place of residence to which they would return in the event that the sole purpose for which they went to Iowa, being the attempted reconciliation of their parents’ marriage, failed.

20. Accordingly, the children were not habitually resident in the USA immediately prior to being retained by the mother in Australia in July 2009 and the application of the SCA must fail.

Other issues in the case: exceptions to mandatory return

1. My determination of habitual residence is dispositive of the application. However, there were other issues raised in the case upon which the court received evidence and submissions and which I will now go on to consider. They will be of no effect but deserve to be addressed.

2. Whilst the 1980 Convention and the Regulations mandate the speedy return of children to their place of habitual residence, there are circumstances in which this court can decide that the children should not be returned. The court has a discretion to refuse to return J and P to the USA if an exception under r 16(3) applies.

3. The mother contends that two exceptions to the mandatory return apply. First, that the children object to being returned to the USA within the meaning of r 16(3)(c). The ICL wholly supports the mother’s case in this regard. Second, that the return of the children to the USA would, within the meaning of r 16(3)(b), expose the children to a grave risk of physical or psychological harm or otherwise place the children in an intolerable situation. This exception is not supported by the ICL save in the event that P return to the USA without J.

4. The position of the SCA was that neither of the exceptions apply and that the children should be sent back to the USA as soon as practicable. In the alternative, if the court finds that the children’s circumstances fall within either r 16(3)(c) or r 16(3)(b), the SCA submitted that the court should decline to exercise the discretion and proceed to order the return of J and P to the USA.

Objection to return

1. Regulation 16(3)(c)  provides that the court may refuse to return a child to a Convention country if the child objects to being returned and the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and the child has attained an age and a degree of maturity at which it is appropriate to take account of his or her views. It imports the provisions of Article 13 of the 1980 Convention which provides:-

   The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

2. In closing submissions, counsel for the SCA conceded that both children objected to being returned to the USA but contended that their objections do not show a strength of feeling beyond the mere expression of a preference or ordinary wishes and that neither child has attained an age and degree of maturity at which it is appropriate to take account of those views.

3. A Regulation 26 Report was prepared by Mr A, family consultant, dated 15 October 2009, pursuant to an order of the court made on 9 October 2009. The orders directed that the assessment consider:

   ·What, if any, objections either child has to returning to the USA;

   ·Whether any objection of the children shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   ·Whether either child has attained an age and degree of maturity at which it is appropriate to take account of those views.

4. The Orders allowed the family consultant a discretion to interview the mother. The mother was not interviewed. The children were interviewed together briefly and then separately.

5. The children presented to Mr A as ‘articulate and intelligent adolescents who remained cooperative throughout the interviews.’[34] Both children gave thoughtful responses and denied having been influenced by either of their parents.

   [34] Regulation 26 Report, dated 15 October 2009, at [9].

1. P is described by Mr A as a quietly spoken and articulate adolescent, who ‘although initially contained and confident, became increasingly distressed upon beginning to convey his thoughts about the current situation.’[35] P reflected with sadness on the conflictual relationship between his parents and expressed that his life was ‘calmer and less stressful in Australia.’  He stated that it would be ‘helpful if his father could reconsider wanting them to return to the United States, and instead to have his father visit Australia regularly.’[36]

   [35] Regulation 26 Report, dated 15 October 2009, at [10].

   [36] Regulation 26 Report, dated 15 October 2009, at [13]

2. Mr A described P as being of at least average maturity for his age. He is still dependent upon his carers but is starting to exhibit independent thought and was able to weigh the positive and negative aspects of situations including life with the father. Mr A assessed P as having formed his objection to return with an element of independent thought but had not yet developed the intellectual detachment to convey his objection without emotion. Hence, Mr A observed him to become:

   “increasingly distressed upon beginning to convey his thoughts about the current situation. [P’s] distress manifested in behavioural mannerisms and emotional upset and his presentation demonstrated the significant emotional difficulty he experienced whilst reflecting on his experience of his parents’ long standing conflict”.[37]

   [37]  Regulation 26 Report, dated 15 October 2009, at [10]

3. In cross examination, Mr A elaborated that P began to jiggle his leg in an anxious way, he had a facial tic and sobbed and cried so much that he nearly filled Mr A’s rubbish bin with his used tissues.  Mr A assessed P as having taken a number of matters into account in forming an objection to return to the USA.  He stated that he would miss his brother, DF, greatly if he had to return.  He would not like to leave his Australian friends.  He could not contemplate being separated from his mother.  Mr A testified that P’s ‘depth of thought around his reasons is reasonably rich.’

4. Mr A opined that P’s objections showed a depth and strength of feeling beyond a mere expression of ordinary wishes and referred to one indication of this being that P had taken account of some good aspects of his previous life in America as well as the bad aspects, such as missing DF.

5. J is described by Mr A as a mature and self confident adolescent who gave a more detailed image of the issues in the relationship between the parents than her younger brother, including in relation to family violence.  J displayed ambivalence towards her father, expressing that on the one hand she loves him because he is her dad and on the other hand she is ‘concerned about his moodiness and his history of violence towards her mother, herself and [P].’[38]

   [38] Regulation 26 Report, dated 15 October 2009, at [16]

6. Mr A’s opinion was that J had given considerable thought to her position, her reasons were plausible and persuasive. Mr A assessed her objection as being no less heartfelt or valid than P’s objection just because it was communicated without tears or overt distress.  He assessed J as holding an objection to returning to the USA which is stronger than an expression of ordinary wishes.  His assessment of J and of P was challenged in cross examination but not shaken.

7. Counsel for the SCA submitted that the concerns upon which the children’s objections were based largely involved concerns for the welfare of the mother if they were required to return to the USA. It was submitted that to the extent that the children were influenced by the mother and her circumstances, the children are not sufficiently mature to have their views taken into account. I do not accept that submission. The Regulations require an objection to return and a certain degree of maturity before the exception can be found to apply. Absent frivolous or baseless concerns, there is no scope to quarantine the matters to which the children can have regard as basis for their objections. The Regulation does require an examination of the child’s maturity but, in my view, it follows that the older the child the more likely it is that the child’s concerns will resonate with or resemble the concerns of an adult including a primary carer and/or abductor. It might not occur to a five year old that there might not be enough money for the rent of reasonable accommodation or for sports shoes and clothing but those may be proper concerns of a 14 year old such as J and of P who was is 13 years old at the time of the hearing.

8. Mr A expressed reservations about delving into the children’s objections to a great extent lest the children be burdened by the responsibility of taking a position which could be interpreted as a choice of one parent over the other. In this respect, his report fell short of what the Order directed.  If the objections of children are an exception to mandatory return, they must be investigated thoroughly.  That said, the framers of the 1980 Convention were similarly concerned at the implications for children of elevating their objections to an exception to mandatory return.  It has been commentated that:-

   The Convention gives the children the possibility of interpreting their own interests. Of course, this provision could prove dangerous if it were applied by means of direct questioning of young people who may admittedly have a clear grasp of the situation but who may also suffer serious psychological harm if they think they are being forced to choose between two parents.[39]

   [39] Explanatory Report of Eliza Perez-Vera [30]

9. The court must determine the matter on the evidence adduced. As indicated, Mr A’s evidence was not impugned by cross examination. Whilst it is not a compelling case in relation to children’s objections, the evidence of Mr A is sufficient in my view to qualify the children’s objections as displaying a strength of feeling beyond a mere expression of ordinary wishes or a preference. It follows that, if this were a case where I had been satisfied that the Regulations were engaged, I would have a discretion to refuse to return both children to the USA. I will discuss below the principles relevant for the exercise of that discretion.

Grave risk of harm: domestic violence

1. Regulation 16(3)(b) provides that a court may refuse to return a child to its home country if a person opposing return establishes that 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.  Practically, it mirrors the provisions of Article 13(b) of the Convention which provides:-

   Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that … there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

2. The appropriate interpretation of Regulation 16(3)(b) has been settled by the majority judgment of the High Court in the cases of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401 where Gaudron, Gummow and Hayne JJ said:

   [41][…]The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in ‘an intolerable situation’. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.

   [42]Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description ‘grave’. Leaving aside the reference to ‘intolerable situation’, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

   [43]Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

   [44]These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a ‘narrow’ rather than a ‘broad’ construction. There is, in these circumstances, no evident choice to be made between a ‘narrow’ and ‘broad’ construction of the regulation. If that is what is meant by saying that it is to be given a ‘narrow construction’ it must be rejected. The exception is to be given the meaning its words require.

   [45]That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

3. The mother submitted that she and the children would be at grave risk of harm where they to return to the USA.  The mother’s material is prepared on the basis of her life story, in which she makes a range of allegations of emotional, physical and financial abuse against her by the father beginning from the very commencement of their relationship.  I summarise the mother’s allegations below, which also provide context to the relationship between the parents that is relevant to the formation of the children’s objections to return.

4. The mother describes a tumultuous commencement to the marriage, with the father’s refusal to bond with her son DF causing a major rift in their relationship during their honeymoon.  The mother alleges that when she was eight months pregnant with J, the father ‘lost his temper and pulled my hair so hard he dragged my head down to the ground.’[40]  She claims that similar incidents occurred repeatedly.

   [40] Form 2A of the mother filed 9 October 2009, pg 10.

5. When the mother was pregnant with P, she discovered she had contracted genital herpes from the father, who she believes knowingly infected her.  Soon after P’s birth, the father forced the mother to move to Virginia, USA.  The father was unemployed, depressed and frequently verbally abusive to the mother, who was initially very isolated having no friends or family in Virginia. The mother states that she wished to return to Australia, but that the father informed her that he had registered the children’s births with the American Consulate in Melbourne so she would not be able to take the children without his permission.

6. The mother describes that the father frequently upset DF, for example by screaming at DF whilst he was in the shower. When the mother attempted to protect DF, she would ‘get the worst of his arm’ and on one occasion in March 2000 she was ‘physically attacked… so severely that he damaged my eye and blackened my face.’[41]  Her evidence is that she felt safer remaining married to the father so that she could protect the children rather than risking the father being granted access alone with them.

   [41] Form 2A of the mother filed 9 October 2009, pg 12.

7. In September 2000, the mother was overjoyed to return to Australia when the father obtained a position in Sydney.  She agreed to move to Sydney as a family and intended to divorce the father.

8. In June 2003, the mother states that the couple separated for six months when the father accepted a job in Melbourne, prior to which had had ‘brutalised’ her, by ‘grabbing my hair and pushing my face into the top of our kitchen island table top, and chipping my tooth.’[42]

   [42] Form 2A of the mother filed 9 October 2009, pg 14.

9. Around this time, the mother deposes to the father becoming ‘rougher’ with the kids.  She describes the father frequently ‘grabbing [J] by the shoulders and shaking her and shouting into her face with his face a few inches away from her.’[43]  The mother states that this occurred once at a shopping centre, which was one of the rare times she felt safe enough to yell at the father to stop.

   [43] Form 2A of the mother filed 9 October 2009, pg 14.

10. On 15 August 2005 the mother states that the father became angry and smashed all the crockery after dinner.  The police attended but did not assist the mother.  On another occasion around this time the mother states she came home to find the children upset because the father had thrown P, then aged eight, across the room when he had taken too long to tie his shoelaces.  Also around this time, the mother became aware that the father wished to move back to the USA.  After receiving a phone call from J at work where she stated ‘Dad is taking us to Texas and you can’t come’, the mother applied for an urgent airport watchlist order so that the children could not be removed from Australia.

11. The mother’s material evinces a great sense of unhappiness towards her forgone career opportunities as a consequence of following the father around the globe for his career advancement.  Moreover, the mother deposes that the father was financially controlling and treated her like an ‘unpaid domestic servant’, providing her with a small allowance to manage the household and no money for her own needs.  It is apparent that one reason for the mother’s relocation to Australia relates to the development of her own career prospects and marks an attempt towards financial independence.

12. The Regulation 26 report of the family consultant refers generally to the children’s exposure to conflict and violence but does not include a great deal of detail. Mr A notes that P states that although his parents rarely ‘argued’, the parental conflict at times resulted in his parents not speaking and his father becoming withdrawn from the family. Mr A states that J expanded on issues of ‘family violence’, however he does not provide specific examples.

13. The mother’s affidavit material paints the picture of an unhappy life.  The father denies the allegations generally but, again, does address them specifically  (see paragraph 18).

14. In addition, the mother asserted she would be unable to support herself in the USA and that the children would be at grave risk of psychological abuse if they were required to return to the USA without her. The ICL did not support the mother’s case in this regard.

15. There is an established line of authority against refusing to return a child merely because the parent who wrongfully removed or retained the child refuses to return.[44]

    [44] See Re C (A Minor)(Abduction) [1989] 1 FLR 403.

16. In Re C, (Abduction: Grave Risk of Physical or Psychological Harm[45]) the Court of Appeal (comprising Butler-Sloss J, Thorpe LJ and Mummery J), considered the predicament of a 6 year old boy whose mother said that she could not leave England in the event that her son was returned to Cyprus.  At first instance, Hogg J found that the boy was wrongfully removed from Cyprus but that, if returned to Cyprus, he would be placed in an intolerable situation under Article 13(b) due to the potential splitting of his family.  In the exercise of her discretion, Hogg J refused the application for return.  That decision was overturned on appeal in the course of which Thorpe LJ commented:

    In many cases, a balanced analysis of the assertion that an order for return would expose the child to the risk of grave psychological harm leads to the conclusion that the respondent is in reality relying upon her own wrongdoing in order to build up the statutory defence.  In testing the validity of an Art 13(b) defence, trial judges should usefully ask themselves what were the intolerable features of the child’s family life immediately prior to the wrongful abduction.  If the answer be scant or non-existent then the circumstances in which the Art 13(b) defence would be upheld are difficult to hypothesise.  In my opinion Art 13(b) is given its proper construction if ordinarily confined to meet the case where the mother’s motivation for flight is to remove the children from a family situation that is damaging the child’s development.

    [45] [1999] 2 FLR 478

17. Thorpe LJ also made some comments about the timeliness with which these cases should be disposed of, which I will refer to later.  It is clear that the Court of Appeal were concerned to extract a number of undertakings from the requesting parent which would operate as conditions precedent to the return of the 6 year old to Cyprus.  Unfortunately, the report is silent on whether any undertakings were forthcoming and, if so, the extent of them.

18. In the case of The Director General, Department of Families, Youth and Community Care and Bennett (2000) FLC 93-011, the Full Court of the Family Court (comprising Kay, Coleman and Barlow JJ), considered whether the exception of grave risk of harm or intolerability ought to be confined to situations where the inability of an abductor to return to the state of habitual residence (in order to participate in legal proceedings) was brought about by the laws of the requesting state rather than by personal circumstances of the abductor, such as mental illness. The Full Court commented that the discretion against return may be used in relation to a very young breast fed baby whose mother was precluded by a medical condition or incarceration from returning to the country of habitual residence. Less extreme cases include the returning parent facing criminal prosecution.[46]

    [46] Re L (Abduction:Pending Criminal Proceedings) [1999] 1 FLR 433 and Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, CA

19. In Re K (Abduction: Psychological Harm) [1995] 2 FLR 550, the UK Court of Appeal upheld the decision of the trial judge who at first instance found that the exceptions pertaining to grave risk and an outcome in contrary to fundamental freedoms were not made out. In that case, the mother who was seeking to stay in England argued that she had no immigration status and would be unable to work in Texas, USA, and was therefore unable to remain or to exercise any face-to-face time or communication with the three year old child in question. Whilst the mother’s claim was factually correct, Leggatt LJ (with whom the other members of the Court of Appeal agreed), found that the operative Texan orders could be varied (although there was no assurance that they would be) and that the mother could be represented on that motion by pro bono counsel (although there was no assurance that she would be). Of that mother’s predicament, the plurality reasons include the following observation:-

    In short, the return of the child to Texas would neither deny her human rights nor put her in an intolerable position, because the Texan court will have power to ensure that her emotional development is not significantly impaired, and thereby in practice ensure that she is properly protected. No person, whether judge or not, could fail to understand the anguish which the mother must feel in her present predicament. It stems ultimately from the factor of marriage to a foreign national. Because she and the father wish to live in their own respective countries, or in her case is precluded from living in the USA, it follows that one or other of them must in practice have possession of their only child. But the court of one or other of the countries must determine what is in the best interest of the child and take such steps as may be necessary to protect her. The Hague Convention has naturally imposed that obligation on the country which has already assumed jurisdiction to grant custody rights. In aid of that court, the courts of a country to which the child has been taken are required to order the return of the child unless circumstances exist that are described in Art 13(b). For the reasons I have sought to explain they do not exist here, even when regard is paid to Art 20. It follows that this court has, in my judgment, no option but to uphold the judge's order and to direct that K be returned forthwith to Texas.[47]

    [47] [1995] 2 FLR 550 at 557-8

1. Finally, I endorse the comments of the authors of International Movement of Children:  Law Practice and Procedure[48] when at [17.96] they say:-

   […] In other words, as one commentator has put it, ‘any assessment of the degree of risk involved [cannot] be blinkered against sight of the practical consequences of return.’  However, as Lord Prosser observed in the Scottish decision, McCarthy v McCarthy, under Art 13(b) the court ‘is concerned with exposure to harm as a consequence of return, and not an exposure to harm which might emerge at a future time, if after return an unsatisfactory  situation is allowed to persist without alteration.’  Consequently, the court should only be concerned with the situation following upon return as viewed in the relative short term.  It may be added that in assessing the risk the court is entitled to weigh the risk of harm of a return against the risk of harm of refusing a return.

   17.97 In judging risk, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally adept in protecting children as they are in the requested State.

   [48] Nigel Lowe, Mark Everall and Michael Nicholls Bristol, U.K., Jordan Publishing, 2004 (footnotes omitted).

2. The mother did not seek any undertakings from the father to make her return to the USA possible or feasible.  She acknowledged, however, that no one is requiring her to go back to the USA let alone to get a job and support herself. In reality, that option may be more apparent than real.  However, the mother would have recourse to courts of competent jurisdiction in Iowa, USA in relation to her financial support, use of the former family home for the benefit of herself and the children and relocation of the children to Australia.  There is no guarantee that the wife would succeed with relief along those lines. However, it is incumbent upon her to attempt before she mounts a case, in the context of the intolerability exception, that she will not be able to exist in the USA.

3. As indicated, the children have each voiced fears about how the mother would survive in the USA. The ICL did not support the mother’s case in this regard. It was a sensible concession to make having regard to the relevant authorities and, ultimately, the mother did not press this aspect of the case with any vigor. The evidence adduced by the mother in relation to her inability or disinclination to return and the historical domestic violence whilst she and the father resided under the one roof, would not have brought the children under the exception provided for in r 16(3)(b).

Grave risk of harm: if P was to be returned alone to the USA

1. The intolerability exception was also sought to be engaged in another circumstance.  That is, in the event that the court found the child’s objections to be made out in relation to J but not to P, there would be a grave risk of psychological harm to P if he were to be required to return to the USA without his sister and mother. Alternatively, the return of P under those circumstances would place him at grave risk of an intolerable situation. The ICL did support the mother’s case in this regard.

2. The family consultant, Mr A, gave evidence that to return P without his sister and mother would ‘be devastating for this child’.  His opinion was that there was a very high risk of psychological harm if P was to be returned the USA alone and that such an eventuality would result in P suffering ‘significant psychological detriment.’

3. If I am wrong in my application of the law in relation to habitual residence but found that the r 16(3)(c) objection exception could apply only to J and was satisfied that the court’s discretion should be exercised to permit her to stay in Australia, I would regard the r 16(3)(b) exception as having been made out in relation to P vis a vis the predicament of returning to the USA without the mother or his sister.

Exercise of discretion against mandatory return

1. I turn now to the manner in which I would exercise my discretion to refuse to return any child in respect of whom an exception under r16(3)(c) or (b) is made out.

2. The applicant SCA contended that if the discretion arose I should not exercise it.  The mother contended that I should exercise it and thereby allow the two children to stay in Australia.  The ICL supported the mother’s case.

3. In the High Court cases of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401, Gaudron, Gummow and Hayne JJ said:

   “[40] […]. if, on the evidence, one of the [..] conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.

4. In the current case, no one sought or offered conditions, undertakings or orders be obtained as a condition precedent to return

5. In the decision of Kay J in State Central Authority and DB [2002] FamCA 804, His Honour, in my view, correctly summarised the relevant law in relation to the exercise of the discretion to refuse an order for return as follows:-

   33. The existence of the Regulation 16(3) defence means that the Court may refuse to order the return of the child under the Convention. This raises the question of the exercise of a discretion. The Regulation offers no express terms as to how that discretion may be exercised. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640; FLC 92-706; 20 Fam LR 390 at CLR 661; FLC 83,456; Fam LR 403:

   “if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous [ Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”

   In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:

   “(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;

   (b)the likely outcome (in whichever forum) of the substantive proceedings;

   (c)the consequences of the acquiescence;

   (d)the situation which would await the absconding parent and the child if compelled to return;

   (e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and

   (f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”

   34.Her Ladyship said:

   “56.As to (f), the policy of the Hague Convention undoubtedly weighs heavily in respect of the children's objections. In my view, expressed in Re HB (Abduction: Children's Objections) [1997] 1 FLR 392, it weighs particularly heavily in those cases where children come to visit a parent living here and wish to remain: unless their objections are very cogent indeed, they should return to their primary carer for the dispute about a change in primary care to be settled in their home country. It weighs rather less heavily when the children wish to remain with their primary carer, particularly where, as here, the child has had no contact with the other parent for such a long time…”

   35.Arden LJ said of the exercise of discretion in the TB case that as the majority were sending the younger children back and that the mother would follow, notwithstanding the wishes of the elder child, the interests of the child dictated that she be forced back as well.

   “107However K is entitled to separate exception under Article 13 by reason of the fact that she is able to express her wishes and objects to return. She is now fourteen and a half years old. … It is important that her wishes should be respected so far as possible but on the other hand since her brothers are to return, the court should consider whether it is right to respect those wishes in those circumstances. More importantly she is close to her brothers and her mother. She has been a source of strength to her mother in the past. Her mother says that at times she does not know how she could cope without K. In my judgment, the likelihood is that her mother will return to New Zealand with A and KI. In those circumstances, despite some dislocation in her education, it is in K's best interest to return also. In so concluding, I reach the same conclusion as Hale J (as she then was) reached on the facts of the case in Re: HB (Abduction: Children's Objections) [1997] l FLR 392, referred to with approval on appeal allowed on another point [1998] 1 FLR 422). Other factors include the fact that she has grown up in New Zealand and has the benefit of her mother's extended family there. Having considered those matters, in my view, in the exercise of discretion effect should not be given to K's wishes and she too should be ordered to return…”.

6. In HZ v State Central Authority [2006] FamCA 466, the Full Court comprising Kay, Coleman and Warnick JJ endorsed the above passage by Kay J in State Central Authority and DB as being the appropriate approach to be taken on the issue of the exercise of discretion to refuse to return a child to its country of habitual residence. 

Comparative suitability of the forum to determine the child’s future in the substantive proceedings

1. I have no doubt that the USA is as suitable as Australia in terms of judicial resources.  The ICL tendered a decision of the Court of Appeals of Iowa In the Marriage of Ellerbroek[49] from which it is apparent that best interests principles apply and, in particular, that there is provision for children to be heard.

   [49] 377 N.W.2^nd 257 (1985)

The likely outcome of the substantive proceedings

1. This is not easy to answer.  Counsel for the SCA submitted that it would likely be a shared care arrangement.  He bases that view on the affidavit of applicable law annexed to the application initiating proceedings which refers to parents having equal rights to custody of their children until a court orders otherwise. That is the case in Australia in terms of allocation of parental responsibility but without further evidence, I cannot assume that shared care will follow.  However, I can be confident that an outcome in either jurisdiction will follow an examination of all relevant evidence which the court is currently not in a position to assess.  I am unable to predict the outcome of proceedings in this court’s jurisdiction let alone in Iowa, USA without knowing what evidence is to be adduced and without having an opportunity to see that evidence tested. 

2. For the purpose of this exercise, I am satisfied that the outcome of the proceedings, wherever they are conducted, will be a determination arrived at with the children’s interests being a very real if not paramount consideration. 

3. One matter which is worthy of note is the apparent ability of the father to visit Australia regularly and to participate in proceedings in Australia.  The evidence in the second statement provided by the father and annexed to the affidavit of Teresa Porritt sworn 26 November 2009 is not comprehensively responsive to the mother’s evidence but, apropos of the mother’s allegations, the father invites a thorough investigation by this court of the mother’s allegations about ‘child abuse’ and  states that ‘I travel to Australia regularly and the court can have me arrested at any time if there is merit to [the mother’s] accusation.’

4. I also note that the father travelled to Australia in September 2009 and spent time with the children.  This visit does not figure in the evidence of the SCA but is verified by the records of international movements produced by the DIAC which record the father arrived in Melbourne from Malaysia on 12 September 2009 and departed Melbourne on 14 September 2009.[50]

   [50] Exhibit “M1”

5. Absent evidence to the contrary, I must assume that courts in Iowa, like courts in Australia, would place significance on the fact that one parent has the capacity to travel regularly between countries when deciding the extent to which international relocation may jeopardise the right of children to have a meaningful relationship with the parent with whom they do not primarily reside.  This is a factor which would slightly favour the exercise of a discretion not to return the children to the USA.

Consequences of acquiescence

1. Acquiescence on the part of the father to the children being retained in Australia was not raised by any party as an exception to mandatory return. 

The situation awaiting the respondent mother and children if they return. 

1. There is no suggestion of any criminal charges or civil penalties which would await the respondent parent in the event of her return.  The mother did not develop a case involving undertakings or assurances of care arrangements or financial support.

The anticipated emotional effect upon the children of an immediate return of both children

1. Counsel for the ICL submitted that if I accept (as I do) that both children object to being returned to the USA and are both of an age and a degree of maturity at which it is appropriate to have regard to their views, it would be detrimental to both children to act contrary to those views.  She submitted that this was particularly so if the court is satisfied (as I am) that the children’s objections are their own and not the result of conditioning or influence by the mother.  The evidence of the family consultant supported this position.

2. Alternatively, counsel for the ICL sought that any return of the children be postponed until the end of the Australian academic year, on or about 22 December 2009.  This was largely based upon the ICL’s discussions with the children, who each stated they were resistant and sad about any prospect of returning to the USA for anything other than a holiday, but if forced to return each has a strong desire to leave after the end of the school year in order to farewell their friends.  The mother supported this position whilst making it clear that she does not want the children to be returned at all.  The SCA opposed any delay.

3. I accept that the best interests of the children would require that any return would be delayed until 22 December 2009.

The anticipated emotional effect upon the children of an immediate return of P (but not J)

1. I accept the evidence of the family consultant to the effect that P would be devastated to return to the USA if his mother, sister and older brother remained in Melbourne. By the same token, if J is able to remain in Australia, there is nothing vindictive or capricious about the mother remaining here with the 14 year old daughter and her eldest son. Given the dire psychological consequences to P of returning him to the USA, this a factor which weighs strongly in favour of the court exercising its discretion against the return of P to the USA in the absence of his sister.  

The extent to which the purpose and underlying philosophy of the Hague Convention would be frustrated if a return order were refused 

1. Leaving to one side the parts of the 1980 Convention which deal with rights of access, the philosophy of the 1980 Convention is to protect children from the harmful effects of wrongful removal or retention across international borders by depriving the abductor’s actions any practical or juridical consequences.  It is not the philosophy of the 1980 Convention to capture all abductions.  The concept of wrongfulness defines the children and the relationships which the 1980 Convention is intended to protect.  For instance, the child must be habitually resident in another Convention country and the requesting parent must have been exercising rights of custody immediately before the wrongful retention or removal.  Finally, only if one or more of the exceptions to mandatory return apply does the court have a discretion to not return the children.  It is only in the exercise of that discretion that the best interests principles have any bearing.

2. I enter into this discussion having already decided to dismiss the application of the SCA on the basis that the children were not habitually resident in USA at the relevant time. Viewing the facts of this case through the perspective of the philosophy underlying the Convention, I am entirely comfortable with the decision. Given the basis upon which I am satisfied that the mother and children returned to the USA in December 2007, this is not a family to whom it is appropriate that the mandatory return provisions of the 1980 Convention apply. This was a divided family with two homes in different countries who reunited in December 2007 with a sole purpose of seeing if the parents could reconcile their marriage. When that sole purpose failed, sad as it may have been, it was the entitlement of the mother and children to return to Australia. My strong view is that, on the evidence, the 1980 Convention and the Regulations are not engaged.

3. I also consider the extent to which the underlying philosophy of the Convention has been reflected in the time taken between the application being filed and determination.  The consensual removal of the children from the USA occurred on 7 June 2009.  The children have been wrongfully retained since mid-July 2009.  The father’s application to the United States Department of Justice is dated 16 July 2009 but the affidavit of applicable law, which accompanied the request, was not sworn until 18 August 2009.  The father’s own affidavit was not made until 26 August 2009.  The application was filed in this court on 21 September 2009.  A report on the children’s objections was undertaken and released on 15 October 2009 and the matter proceeded before me on 5 and 6 November 2009.  Processes following on from a wrongful retention or removal are intended to be a hot pursuit remedy.  To prolong proceedings can lead to the creation of unnecessary litigation issues.  I do not consider that any harm has been done as a consequence of the reservation of this decision.  

Exercise of the discretion

1. Taking the above matters into account, if this were a case to which the Regulations applied and at least one exception was made out for each child, I would exercise my discretion to refuse to return the children to the USA.

Conclusion

1. The application of the SCA is to be dismissed. All orders which were made incidental to, and pending the determination of, that application will be discharged.  The passports of the children will be returned to the mother and there is no restriction on the movement of the children out of Australia.  No parenting orders exist in relation to the children.  This court has jurisdiction in relation to the children and, until it orders otherwise, each parent has shared parental responsibility.

2. As I said earlier in these reasons, it is most unfortunate that this matter was not mediated.  Whilst the ICL’s task is at an end, it would be a compassionate and appropriate act for Mr Mulvany to contact the children and the father as soon as practicable in order to commence some dialogue about what the father wants to do and when he can, or will, return to Australia to see the children.  From this point onwards, absent an application for parenting orders, I have no power to order that Mr Mulvany intervene and I do not envisage that he will get paid for his trouble.  However, it is the court’s experience that Mr Mulvany very frequently helps families and children in necessitous circumstances for no reward.

3. If the parties, or one of them wish to apply for parenting orders, he/she should approach Registrar Mestrovic or, in her absence, Registrar Field for preferential listing.  I will not make any order in that regard because there are no pending proceedings; however, it will be sufficient to produce these reasons. 

I certify that the preceding one hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  2 December 2009