State Central Authority and Wattey
[2008] FamCA 1108
•16 December 2008
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & WATTEY | [2008] FamCA 1108 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Habitual residence |
| APPLICANT: | STATE CENTRAL AUTHORITY |
| RESPONDENT: | MS WATTEY |
| FILE NUMBER: | MLC | 7568 | of | 2008 |
| DATE DELIVERED: | 16 DECEMBER 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BENNETT J |
| HEARING DATE: | 11 NOVEMBER 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS GREENHAM |
| SOLICITOR FOR THE APPLICANT: | SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES |
| COUNSEL FOR THE RESPONDENT: | MS J STEWART |
| SOLICITOR FOR THE RESPONDENT: | MASON SIER TURNBULL |
Orders
IT IS ORDERED:
That the application of the State Central Authority be and is hereby dismissed.
IT IS DIRECTED:
That a copy of my reasons for judgment herein be placed on the file proceedings number MLC6076 of 2008, being the parenting proceedings between MS WATTEY and MR FORTESCUE.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Wattey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7568 of 2008
| STATE CENTRAL AUTHORITY |
Applicant
And
| MS WATTEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the State Central Authority filed on 20 August 2008 seeking the return of … (“the child”) born in July 2007 to England, United Kingdom pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Regulations import into domestic 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”).
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 so that appropriate arrangements can be made for them within the legal and social framework of that habitual residence.
The requesting parent, at whose behest the application is brought is the child’s father, MR FORTESCUE. He is a citizen and resident of England.
The respondent mother is MS WATTEY. She is an Australian citizen. The child and the respondent mother are currently in Melbourne, Australia.
It is conceded by the respondent that the 1980 Convention is in force between Australia and England.
Relevantly, reg 16 of the Regulations provides:
16(1) If:
(a) an application is made to a court under subregulation 14 (1) [as is the present application] for an order for the return of a child who has been removed to, or retained in, Australia; and
(b) the application is made within one year of the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
16(1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child’s removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
The applicant State Central Authority alleges that on 28 June 2008 the respondent mother, Ms Wattey, wrongfully removed the child from Spain (also a contracting state to the 1980 Convention) to Australia in breach of the requesting parent's rights of custody under English law. It seeks that the child be returned to England forthwith, as is required by the Regulations in the event that the removal of the child into Australia is found by this Court to be wrongful and none of the exceptions to mandatory return apply.
The respondent mother opposes the return on the basis that, as at 28 June 2008, the child was not habitually resident in England. The respondent mother does not assert that any other pre-requisites to the operation of the Regulations are lacking or that any exceptions to mandatory return apply. Accordingly, the only issue for me to decide in this case is whether the child was habitually resident in England immediately prior to the alleged wrongful removal on 28 June 2008.
If the child was habitually resident in England as at 28 June 2008, I am required to order that he be returned subject only to hearing from the respondent as to any conditions which she may propose under Regulation 15. It was agreed at the trial that the mother would provide notice of the conditions she would seek and, if necessary, I would convene another part of the hearing to determine any outstanding issue.
If the child was not habitually resident in England at the relevant time, the Regulations are not applicable and the application must fail.
No issue was taken that the child is alleged to have been wrongfully removed from one contracting state, being Spain, and is sought to be returned to another contracting state, England. In this case, the applicant alleges that the child was removed to Australia (from Spain) in breach of rights of custody accruing to the father in another contracting state (England) in which the child was habitually resident immediately prior to the alleged wrongful removal. More simply, it is alleged that the child was wrongfully removed to Australia in breach of rights of custody accruing to the requesting parent under English law and that is a case clearly within the purview of the Regulations.
Habitual Residence (Regulation 16(1A)(b))
The Regulations in relation to mandatory return apply, subject to certain exceptions, only if the child was habitually resident in England immediately prior to the mother’s removal of him from Spain to Australia on 26 June 2008.
Habitual residence is a question of fact in each individual case. I will examine the facts in detail but here wish to outline the relevant legal principles against which the facts will be assessed.
In Panayotides (1997) FLC 92-733 at 83,897 the Full Court majority (Fogarty and Baker JJ) quoted with apparent approval the following passage from the judgment of Jordan J:
The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:
(1) the expression “habitually resident” is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990) 3 WLR 949);
(2) the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);
(3) the habitual residence of a child whose parents reside together is the habitual residence of those parents (see, Re B (minor) (1993) 1 FLR 993);
(4) it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (see, State Central Authority v McCall (1995) FLC 92-552);
(5) habitual residence refers to the parents’ habitual abode in a country:
‘Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.’ (See, re B (minor) (supra) p.995).
I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:
‘All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’
I do not accept an interpretation of the proposition advanced in In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.”
By way of amplification, I would also add the following observations of Jerrard J in the decision of Director-General, Department of Families and Kinnunen delivered in Brisbane on 2 March 2001 and the case neutral citation for which is [2001] FamCA 393 His Honour said (at page 15):-
• that a habitual residence is abandoned when there is a departure from it with a settled intention not to return, and also when, over time, the fact of residence elsewhere is established by the conduct of the parents (see the remarks and cases cited in Mozes);
• that while a person can have only habitual residence at any one time (Hanbury-Brown), a habitual residence can be abandoned without there being formed the intention to occupy another residence for more than a limited period (see Bates, cited in footnote 21 in Mozes). Whether this has occurred in a particular case is a question of fact.
His Honour’s references are to Hanbury-Brown and Hanbury-Brown (1996) FLC 92-671 and Mozes and Mozes (2001) 239 F3.d 1067 (9th Cir 2001).
I adopt the above principles in relation to habitual residence and will enlarge upon the application of them when I have discussed the evidence in the present case.
The applicant State Central Authority bears the onus of proving that the child was habitually resident in England before he was removed to Australia on 28 June 2008. Proof must be on the balance of probabilities.
In Re: H & Ors [1], a case involving a wardship application, Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings, such as these 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".
[1] (1996) 1 All ER 1 at 16.
That is how I approach the evidence in the present case.
Evidence
This was a case run on the papers without oral evidence and with no cross examination. No one sought that the case be conducted otherwise.
The documents that the applicant State Central Authority relies on are the Form 2 application filed 20 August 2008, to which there is attached various documents including;
a)The requesting parent’s application (pages 10 to 45 inclusive);
b)The affidavit of the requesting parent sworn 30 July 2008 (pages 46 to 86 inclusive);
c)The statement of Mr WN signed and dated 30 July 2008 (pages 87 and 88);
d)The of the paternal grandmother signed and dated 31 July 2008 (pages 89 to 93 inclusive);
e)Documents in proceedings initiated by the requesting parent in the Family Division of the High Court of Justice in case number … (pages 100 to 118 inclusive).
The applicant also relies on the following documents which are attached to the affidavit of Ms PT sworn 22 October 2008:-
a)Declaration of Mr WN made 13 October 2008;
b)Affidavit of Ms AN sworn 16 October 2008;
c)Affidavit of Ms PR sworn 17 October 2008;
d)Further affidavit of the requesting parent sworn 20 October 2008;
e)Further statement of the paternal grandmother signed and dated 21 October 2008.
Counsel for the applicant prepared a written outline of the applicant’s contentions[2]. It was a well thought out and helpful document. Counsel for the respondent did not take issue with the applicant’s statement of applicable law.
[2] Exhibit “SCA2”
The respondent mother relied on the following documents:-
a)Form 2A filed 1 October 2008;
b)Her affidavit sworn 30 September 2008;
c)Her financial statement sworn 30 September 2008;
d)Her further affidavit sworn 3 November 2008.
Neither party objected to the admissibility of evidence relied upon by the other.
As with many cases of this nature, the evidence is not comprehensive. Gaps which are routinely filled in domestic proceedings by way of evidence in chief and cross examination appear as gaping holes in cases which proceed without any oral evidence. The court must simply do the best that 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[3], at page 548, and gave rise to the following observations:-
“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.
[3] [1992] 1 FLR
With respect, I adopt those observations as applicable to this case. As I said, no party requested cross examination.
In what I have already said and in what follows, statements of fact are findings of fact.
Relevant history
The requesting parent is 29 years old and of British nationality. The respondent mother is a 31 year old Australian.
The parents met in England in September 2006. At the time, the mother was travelling on a two year working visa. The mother and father resided together in hostel type accommodation in or around London and stayed briefly in France. There was some period when the mother and father either shared their accommodation with someone else or occupied separate rooms within the one hostel.
At the hearing, it was conceded by counsel for the applicant State Central Authority that the relationship was not happy. I will deal with the evidence in greater detail below.
Returning to the history, in April 2007, which was about 7 months after the parents had met and commenced a relationship, the mother conducted a home pregnancy test on herself. The result was positive but she did not tell the father. Three months later, in early July 2007, she told the father that she had been to the doctor and was carrying their child. Some six days later, in July 2007, the child was born at <26 weeks gestation.
The child’s extreme prematurity required him to be hospitalised for 35 days in intensive care, 32 days in the high dependency unit and for 50 days in the special care neonatal unit. For the first month of the child’s life, the mother remained in hospital with the child. Upon her discharge, she returned to live with the father. The child was discharged from hospital on 5 November 2007 by which time he was nearly four months old. The parents moved from a single room to a double room in hotel accommodation.
The requesting parent is entered on the child’s birth certificate as the father although the mother contends that it was not originally the case.
The parents moved twice so, whilst in London, they occupied three abodes. All these places were of budget hostel standard. The applicant State Central Authority relies on evidence forwarded by the father from some of the people with whom the couple associated whilst in London.
In February 2008 the requesting parent took up employment in Spain in the hospitality industry. It is a position for which he applied in May or June 2006, which was well before he had met the mother.
There is a significant dispute on the evidence about the nature of the father’s employment in Spain. It is contended by the applicant State Central Authority that the position was only ever temporary and that the mother, father and the child, would return to England to live and that, in any event, whilst away the parents had agreed to return to England at the end of June 2008. It is the mother’s case that the father’s employment was indefinite and that, in any event, she was living from day to day. She denies that she agreed to return to England and moreover she contends that she did not have a visa to enable her to do so. It is common ground that, as at the end of June 2008, the mother had no automatic right to obtain a visa to re-enter England.
It is apparent that each parent, as well as their representatives, regard the nature of the father’s employment as very significant. The applicant’s position is that the employment was only temporary so departing England for that purpose did not interrupt or disturb the child’s status as an habitual resident of England. The respondent mother contends that, if the child’s habitual residence ever was England, he abandoned England as his habitual residence when the family departed for Spain.
Each witness gives evidence which reflects his or her construction of events. It is not uncommon in this jurisdiction for witnesses to recollect events differently but competing versions must be reconciled, accepted or rejected.
The terms and conditions for the employment actually taken up by the requesting parent are set out in an employment proposal sent email on 28 January 2008. It reads:-
“Terms and conditions for the position of [position title] at [venue]:
1.Salary €2,000 per month
2.One way ticket (economy class), UK-[Spain], for you and partner and baby, refundable with a receipt.
3.Accomodation will be provided for you and the family for the 1st 3 months, thereafter we expect you to seek your own.
4.A vehicle will be at your disposal for the days you are off at no charge, for the 1st 3 months.
5. Meals whilst on duty will be provided.
6. a 5.5 day a week working schedule.
7. 3 months probation period.
8. 48 days annual leave.
9. No suit/tie and jacket will be required whilst working. Smart casual, rather.
If you are in agreement with the above terms when can you commence?
I will give you a call 2morrow and follow up on this email. If you have any questions plse have them prepared. Note I have attached job description proposal.”
The requesting parent deposes[4] that he had applied for the position in Spain in May/June of 2006 (well prior to the child’s birth). He says that he received a job offer subsequent to November 2007. He says
“This was a position which I could fill but it would not be known whether this would be a permanent position for sometime. Consequently [the mother] and I agreed to give it a try and if we decided subsequently to remain in [Spain] and if there was suitable employment then we could stay. However, the position was temporary and we considered ourselves still domiciled and based in England even after we moved to [Spain].”
[4] requesting parent’s affidavit sworn 30 July 2008, paragraph 11
The mother deposes[5]
“The first I heard of a job offer in [Spain] was when I was in hospital with [the child] in the first month of his life. The first offer was rejected by [the father]. The General Manager of the resort then came to the UK and he and [the father] agreed to meet. Weeks later [the father] received a number of emails and [the father] and I discussed going to [Spain]. By this stage our relationship had resumed, albeit dysfunctionally (sic), and literally hanging by a thread. There were continued negotiations surrounding money and job title. The whole process took a number of months. I note that [the father] has selectively produced one email only and I call on him to produce all of the emails passing between him and his employer.”
[5] mother’s affidavit sworn 30 September 2008, paragraph 25
She continues[6]
“[the father] suggested we go and I agreed. Although there was a three month probationary period at the time that we left the United Kingdom, we had discussions about the employment being indefinite.”
[6] mother’s affidavit sworn 30 September 2008, paragraph 26
The applicant State Central Authority also relies on the statement of Mr WN made 30 July 2008[7] as corroboration of an understanding between the mother and the requesting parent that the father’s employment was temporary. Mr WN says
“[…] [the father] told me that he had applied for a job in [Spain] and accepted it on a three month temporary contract. The three months was a trial period to see if he liked the job and to see if they liked him and he could do the job. If after three months [the father] did not like the job or they found him unsuitable [the father], [the mother] and [the child] would return to the UK. The job also included temporary accommodation.”
[7] Form 2 application filed 20 August 2008 includes statement of Mr WN at p. 87
I note that Mr WN refers to a conversation between the requesting parent and himself and does not purport to involve the mother. Second, the witness’ reference to the requesting parent’s application for and acceptance of employment in the one sentence does not convey that the father’s application had been made before he even met the mother. I do not accord Mr WN’s statement about the nature of the father’s employment any weight.
I am satisfied that the terms of the father’s employment are accurately set out in the email from his employer, extracted above. It was to be regular employment subject to a three month probation period during which time the employer could back out. I am satisfied that the mother and the requesting parent each went to Spain with the intention of seeing whether he/she enjoyed it, would want to stay and each thinking that they would assess the situation once there.
There was evidence about how the parents made preparations for their departure. The mother deposes[8]
“[U]pon our departure from the UK to [Spain], [the father] and I packed up as many of our personal possessions (which were few in any event) as we could take with us, in line with the applicable baggage limits. Most remaining items, mainly clothing, were disposed of prior to our departure from the UK.”
[8] mother’s affidavit sworn 30 September 2008, paragraph 28
The father’s evidence is that belongings were purposefully retained, in storage, in England for use when the family returned. He deposed[9]
“I deny paragraph 28 of [the mother’s] statement and state that when we had packed all that we could we had 4 large bags and two carry on pieces of luggage and when we arrived at the airport early in the morning we were indeed 28 kg over weight but the gentleman at the check in said if we bought a new bag and transferred the two smaller bags contents into the new bags he would only charge us for the extra bag. The limit per person is 1 bag of no more than 30 kg per person. I also deny that we disposed of any thing we were not taking with us (see photos). The photos show my computer with new asus flat screen, the box for the screen as well computer book and bits and pieces. All my son [the child’s] toys, books, blankets as well as [the child’s] mosses basket which [the mother] asked [Mr WN] to collect from our old address, […] Road. All of the items in the photos were left at [Mr WN’s] to keep for us until we returned. The items are indeed of value of about ₤500 to ₤600 pounds. I state that I would have never have disposed of any of these items, especially my son [the child’s] toys.”
[9] requesting parent’s affidavit sworn 20 September 2008, paragraph 85
The State Central Authority filed two statements by Mr WN, one made in response to the mother’s evidence. Mr WN does not depose to the items being in his care.
In the context of what possessions the parents had, I note that the requesting parent deposes that it was he, rather than the mother, who provided materially for the family. His evidence is [10]
“[the] only thing [the mother] ever bought was a Video camera for her self for about 300 euros I thought [the mother’s] reluctance to pay for anything was very selfish.”
He goes on [11]:
“since [the child] was born [the mother] has bar a few packs of nappy never bought anything for our son [the child] everything [the child] had was either bought by me or my family. [The mother’s] family did send a few items of clothing for [the child] as well as a few cuddly toys.”
It is a constant theme in the father’s narratives:
“[my] concern has and question has always been that any money [the mother] has ever earned or has had has been used for [the mother’s] personal use and my money has always been there to support myself [the mother] and our son [the child]. It is now apparent that [the mother] was and is quite happy to hold on to what she has and just sit back and let everybody ells(sic) pay for her.”[12]
[10] requesting parent’s affidavit sworn 22 October 2008, paragraph 87
[11] requesting parent’s affidavit sworn 22 October 2008, paragraph 102
[12] requesting parent’s affidavit sworn 22 October 2008, paragraph 116
The mother was in England as a tourist. Whilst in England, she and the father were staying in hostel accommodation. Having regard to the father’s evidence that the mother did not acquire any significant personal property, I conclude that whatever general household belongings the couple used or possessed were likely to have been the property of the father. It follows that the mother would have had very little to leave behind. The mother’s evidence was that “most”, not all, remaining items “were disposed of”. There is uncontradicted evidence that the mother left some baby equipment with a friend and then arranged to have it retrieved by a Mr WN when she saw that the friend had advertised the item(s) for sale on line.
The father deposes that the child’s toys and accoutrements were stored with Mr WN and that he (the father) “would never have disposed of these items.” It seems to me that, even on the father’s evidence, a distinction can be drawn between a parent not being able to bring themselves to dispose of toys or keepsakes of their child and a father who stores them for further anticipated use.
Finally, it is apparent from terms and conditions of the father’s employment[13] that, regardless of whether or not the couple decided to stay in Spain, their initial accommodation was temporary. The terms and conditions were described, inter alia, as follows:- “accommodation will be provided for you and the family for the 1st 3 months, thereafter we expect you to seek your own.”
[13] Form 2 application filed 20 August 2008 including requesting parent’s affidavit sworn 30 July 2008, page 65
Having regard to luggage restrictions, the nature of the father’s employment and the modest quantity of personal belongings it seems that this couple had, even combined, I am not prepared to accord much weight to what was taken to Spain and what was left behind. It seems to me that the fact that belongings were left behind in England is equivocal. It might have been a case of the father not wanting to ship all of his possessions to Spain until his employment position was unconditional and they had to accommodate themselves independently.
The mother provided evidence about her visa status in the context of what options were open to the requesting parent and her when they left England. She deposed[14]
“At the time we left the United Kingdom [the father] and I were aware that my UK Visa would expire during our time away. Once my UK Visa had expired, I was aware that I could not legally re-enter the UK within six months of departure. The thought had also occurred to me that I would at least have some time away from [the father] in [Spain] as he would finally be employed, and our relationship may improve for everybody’s benefit. I confess that the thought also occurred to me that if the relationship continued on its destructive course, I would be more readily able to leave [the father] from [Spain] as he would be occupied with his employment on most days.”
[14] mother’s affidavit sworn 30 September 2008, paragraph 27
The requesting parent does not contradict the mother’s position that she could not re-enter England within six months of leaving and, even then, had no automatic right of re-entering England. He deposed that[15]
“14. […]Before leaving for Spain [the mother] and I had also looked into whether she could apply for a ‘De Facto’ English visa so that we could all return to England in case things did not work out in [Spain]. [The mother] called various agents and reported back to me that a visa was available but that for most visa applications they did prefer us to have been together for twenty four months. However, they also said that each case is taken on it’s (sic) merits. We planned to return to England and apply for [the mother’s] visa at the English border. We do not think that this would be a bar to [the mother] being allowed entry.”
[15] requesting parent’s affidavit sworn 30 July 2008, paragraph 14
The mother’s evidence in response[16] was that
“I deny paragraph 14 of [the father’s] Affidavit […]. I deny that [the father] and I intended to apply for a UK Visa for me at the UK Border. It was my understanding that any such Application for a UK Visa had to be made well prior to any attempts to re-enter the United Kingdom. Moreover, I had no intention of returning to the United Kingdom. I admit I informed [the father] that I wanted to go back to Australia with [the child]. However, [the father] advised me that he would not allow me to take [the child] to Australia, even for a holiday. I deny that [the father] offered to pay my airfare to Australia.”
[16] mother’s affidavit sworn 30 September 2008, paragraph 58
Doing the best I can, it seems more likely than not that, when they departed England, the parents were pre-occupied with the father’s prospects in Spain and did not give any thought or make plans for anything past the father commencing employment. Given that the parties were both aware of the prohibition against the mother re-entering England within six months, I am satisfied that there was no concluded agreement or specific intention that they would return in three months.
The family, comprising the requesting parent, the mother and the child arrived in Spain in February 2008 and the father commenced his employment. The mother deposes [17]that
“In summary, at the time we arrived in [Spain] in February of 2008 I was not going to return to the UK and nor could I with the visa I had. When we arrived [the father’s] employment, although probationary for a period of three months (later extended by a month) was for an indefinite period. My visa for Spain was for an initial period of three months (later extended by a further three months)”.
I have difficulty in accepting that the mother knew at the time she arrived in Spain that she would not return to England. I think it is more likely than not that she did not know what she would do and that matters were fluid.
[17] mother’s affidavit sworn 30 September 2008, paragraph 41
At paragraph 12 of requesting parent’s first affidavit, he deposes about how his employment progressed over the first two or so months:-
“About April 2008 I had a fair idea that my employer was not very happy that [the person who the father was supposed to replace] had no intention of leaving. Consequently I knew that my employment was therefore in question. This was all discussed with [the mother]. This was never a permanent move. [The mother], [the child] and I went out to [Spain] knowing it may or may not work. If it did not work out we would write the experience off as a working holiday. I had a three month contract to begin with. Initially [the mother] and I agreed to stay for three months. My employer had then extended the temporary contract by one month which would have taken them up to the end of June 2008”.
The father says that at the end of June 2008 he and his employer were supposed to have a meeting to discuss whether to further extend the temporary contract. However the mother and he had already discussed returning to England. He deposes[18]:-
“Returning to England depended on, amongst other things, whether [the mother] and I were happy with the environment in [Spain], whether [the child] was ok with the heat and whether my employer was happy with me.”
And he goes on:-
“[the mother] and I had agreed that at the end of June 2008 we would all return to England and that I would notify my employer at the meeting at the end of June 2008. That way I would benefit financially as I would receive my full month’s salary and my leave pay.” The mother denies any agreement to return to England consequent upon the father’s unsuccessful employment or at all.
[18] Form 2 application filed 20 August 2008 including requesting parent’s affidavit sworn 30 July 2008, paragraph 12, page 52
The mother says[19] that
“I say that other than the standard 3 month probation period, [the father’s] job offer in [Spain] was indefinite, and the initial intention was to remain there. It was only later that [the father] changed his mind. My position was less clear due to my visa situation. At the time I left the UK I was simply taking one day at a time. Even when we were leaving the UK, I was aware that if my relationship with [the father] continued, I would continue to be subjected to his on-going physical and verbal abuse. However, I was not in a position to think clearly or rationally in relation to issues surrounding the relationship, but I think even at that early stage, I had formed the view that my relationship with [the father] was very damaging to me and as [the child] got older, would be very detrimental to his welfare. I specifically deny that I had agreed that “we would all return to England.” [The father] told me that he would return to England/UK with [the child] and without me”.
The mother’s affidavit changes variously from describing events which occurred to a reconstruction of what her intentions may have been at an earlier point in time. This makes her evidence difficult to follow. Unfortunately, much of the evidence from the requesting parent is drawn in the same way.
[19] mother’s affidavit sworn 30 September 2008, paragraph 52
The mother also deposes[20] that
“ I had initially thought that [the father’s] employment situation deteriorated within three to four weeks of our arrival in [Spain], however upon reflection that period may have been slightly longer. Certainly there was a period in [Spain] when [the father] looked at purchasing property. He wanted me to sell my property in South Australia to fund the purchase. He told me that if I had any ounce of responsibility, I would sell the block and use the money here (in [Spain])”.
[20] mother’s affidavit sworn 30 September 2008, paragraph 30
The requesting parent denies that he requested that the mother use her capital to acquire property in Spain.
The mother goes on to depose[21]:-
“[The father] was well aware that I could not re-enter the UK and that my visa in Spain would soon expire. I applied for a two month extension of my Spanish Visa, but was granted an extension of almost three months. At one point [the father] insisted I consult a lawyer in Spain to find out how to stay in Spain for longer”.
[21] mother’s affidavit sworn 30 September 2008, paragraph 31
The mother’s Spanish visa was due to expire on 28 May 2008 but was renewed for three months. On affidavit, the mother describes how the father circled the names of various lawyers. One lawyer the mother spoke to said that if she married the father, her visa difficulties would be solved. Her case is that, from that point onwards, the father wanted to marry her. She placed these conversations as occurring in mid to late April 2008 and annexes an email she sent to her mother saying the father now wants to marry her.
The mother deposes[22] “at some point the father realised I would not marry him. His employment situation was deteriorating and he started talking about leaving his employment. He told me that I would be going back to Australia without the child. He told me that when he returned to the UK, he would take the child with him. I recall the father telling me “I’m taking [the child]” in a tone that inferred I had no say. He even went so far as to talk about the government assistance he would receive as a single parent.” The requesting parent denies ever discussing marriage with the mother but did not deny the balance of the mother’s assertion[23].
[22] mother’s affidavit sworn 30 September 2008, paragraph 32
[23] father’s affidavit sworn 20 October 2008, paragraph 89
It is the mother’s evidence[24]that the father was unpredictable and talked of either returning to the UK without her or staying in Spain. She says he told his mother (the child’s paternal grandmother) that the mother could not go back to the UK because of the visa situation. She says he regularly and consistently used her visa situation to taunt her and threaten to separate her from her infant son. She says she told him she wanted to return to Australia with the child and he threatened to get an injunction to prevent her from doing so. The father admits the reference to an injunction and disputes that the mother could know what he spoke to his mother about by telephone.
[24] mother’s affidavit sworn 30 September 2008, paragraphs 33 to 40
The mother’s evidence paints an uncertain picture of her circumstances immediately prior to her removing the child from Spain and bringing him to Australia. She deposes[25]
“I did not consider myself as living permanently in either the UK or Spain. Moreover, my UK Visa had expired on 15 August 2008 and my Spanish Visa was about to expire on 21 August 2008. [The father] was aware at all times of the situation with respect to each of my UK and Spanish Visas.”
[25] mother’s affidavit sworn 30 September 2008, paragraph 53
She goes on to say that the relationship continued to deteriorate and the father threatened to return to the UK without her, which became especially urgent when the father advised he would resign his employment in late June and conclude his employment in mid July. The mother’s case is that the requesting parent would change his mind about his employment on almost a daily basis and that she felt very insecure. Her evidence[26] was that:-
[26] Affidavit of the mother sworn 30 September 2008
32.“…His employment situation was deteriorating and he started talking about leaving his employment. He told me that I would be going back to Australia without [the child]. He told me that when he returned to the UK, he would take [the child] with him. I recall [the father] telling me “I’m taking [the child]” in a tone that inferred that I had no say. He even went so far as to talk about the government assistance he would receive as a single parent.
33.[The father’s] attitude was entirely predictable. On the one hand he would talk of taking [the child] to the UK without me. On the other he would talk of staying in [Spain] and getting his mother or a babysitter to come and care for [the child] when I was required to leave and go back to Australia.
34.[The father] told me on one occasion that he would return to the UK with [the child] but without me and he had arranged for his mother to take two months off work to care for [the child] while he sought employment.
35.In late May and early June I overheard a conversation between [the father] and his mother. From our end I heard him tell his mother that I could not go back to the UK because of the visa situation. His mother must have objected because he then told her that I would go back to Australia for a couple of months and then go to the UK. This was false.
36.[The father’s] plans changed all the time. However he regularly and consistently used my visa situation to taunt me and threaten to separate me from our infant son.
37.I had told [the father] that I wanted to return to Australia with [the child]. He threatened to get an injunction preventing me from removing [the child] from [Spain]. I saw a text message he sent his mother saying “she’s gong to try and take [the child]”. I saw his mother’s reply saying “We’re not going to let her do that”.
38When [the father’s] mother was in [Spain] I remember her saying that [the father] was worried that he was going to come home from work one day and “they won’t be there”. I replied by saying “Well that just might happen”.
39.Further and as deposed by me in my previous affidavit, [the father] had placed [the child’s] passport in the safe in our hotel room and commenced taking the safe key to work with him each day.
40. It was an impossible and dreadful situation. There was no doubt in my mind that [the father] was capable of separating me from our son.”
On 7 June 2008, the father emailed a friend in England with a message that:
Hi mate ill call you on Monday we might be coming back at the end of the month.
In the father’s first affidavit, the affidavit which supports his request under the 1980 Convention, he deposes “So, [the mother] knew that she and I and [the child] were to return to England shortly when she abducted [the child].[27].
[27] Form 2 application filed 20 August 2008 including requesting parent’s affidavit sworn 30 July 2008, paragraph 12, page 52
In the context of whatever application the mother’s status to get back into England, he deposed[28]:-
“14. […]When we were in Spain [the mother] told me that she wished to travel to Australia for a holiday to see her family for a period of up to three months. I offered to pay. I did not want her to take [the child]. This was because I was not completely sure that she would return back to England with [the child]. If she had gone to Australia for three months then [the child] would have been out of England for six months giving her an almost (my emphasis) guaranteed right to re-enter England on a new visa.
15. We had a safe in the cupboard in our bedroom at the hotel in [Spain] where all our valuables and important documents were kept because the apartments were serviced by cleaners on a regular basis. The key to the safe was on the same key ring as my other keys and there was only one key to the safe.”
I regard the father’s evidence in this regard as corroborative of the fact that he spoke to the mother about the possibility of her being separated from the child. I find that the mother would have reasonably believed at this time that the father was considering returning to England with the child and that she may not be able to re-enter the country with them.
[28] Form 2 application filed 20 August 2008 including requesting parent’s affidavit sworn 30 July 2008, paragraphs 14 and 15
The statement of the father’s witness, Mr WN, is also corroborative of the fact that the father was openly discussing the mother’s separation from the child due to her visa difficulties. He states[29]:-
[…] [The father] used to phone or text me once a week just to let me know what was going on. After a month or so [after the family arrived in Spain], his texts got fewer and fewer and ones I did get, I got the impression that all was not well! In the second week of June I received a text saying “we are coming back to the UK at the end of the month”. I immediately text back saying “oh dear I thought you were enjoying it”. A day later [the father] telephoned me to explain what was going on. [The father] said the job wasn’t working out because they had dropped him in at the deep end (16 hour days etc.). Because of [the mother’s] visa requirements, [the father] and [the mother] had agreed that [the mother] would go back to Australia for a couple of months and/or return to the UK with [the child] and [the father]. At no time did [the father] give [the mother] permission to take [the child] back to Australia, because [the father] suspected that once in Australia, [the mother] would not return.”
[29] Form 2 application filed 20 August 2008 including statement of Mr WN dated 30 July 2008, page 88
The mother deposed[30]
“I say that as our relationship continued to deteriorate, [the father] would threaten me, as aforementioned, that he would return to the UK with [the child], whilst I had no option but to return to Australia without [the child], as I did not have a valid Visa upon which to re-enter the United Kingdom. By June 2008, I had made a definite decision to end my relationship with [the father], and to return to Australia with [the child]”.
[30] mother’s affidavit sworn 30 September 2008, paragraph 55
I accept the mother’s evidence that, in late June 2008, she believed that her separation from the child was a real possibility if not imminent and could occur in circumstances outside her control.
The mother departed Spain, with the child, on 28 June 2008 without the knowledge or consent of the requesting parent. She left a note[31] which read:-
“Dear […]
I am so sorry to tell you this but I have left and taken [the child] with. I know you are going to be angry but I didn’t want you to take him back to the UK without me. I will contact you soon. I am going home.
I am so sorry
Love [the mother] + [the child].”
[31] Form 2 application filed 20 August 2008 including requesting parent’s affidavit sworn 30 July 2008, page 61
The father deposed[32] that
“[a]t any point in time my employer in [Spain] could have given me fifteen days notice to terminate the position and our accommodation. On Monday 29 June 2008 I was asked to leave and had no option but to do so. Naturally I returned to England.”
[32] Form 2 application filed 20 August 2008 including requesting parent’s affidavit sworn 30 July 2008, paragraph 16
This evidence is at odds with part of the statement of the father’s witness, Mr WN[33] whose evidence is that that father, once he realised that the mother had removed the child said he was taking the next plane to England. Relevantly, Mr WN’s statement reads:-
“Early evening on Saturday 28th June I received a text message from [the father] saying “[the mother] had absconded with [the child] and would be back to the UK on the next aeroplane, because the Spanish authorities were not willing to assist him in any way. I text [the mother] saying “don’t be silly girl, surely you and [the father] can sit down and sort things out”. I received a text back on the 2nd July 2008 from [the mother] saying “I am sorting things out here”. I text back asking” where are you” and to this day I have not had an answer to my question.”
It is clear from the balance of the paragraph that Mr WN was in touch with the father between the father’s return to England and making his statement on 30 July 2008. He says, “[w]hen [the father] arrived back in the UK, he stayed with me at my flat for a week until he could sort things out and he is now living and will in the foreseeable future be living with his aunt and uncle in […]. [The father] occasionally returns to London to see his solicitor.”
[33] Form 2 application filed 20 August 2008 including statement of Mr WN dated 30 July 2008, page 88
On 15 July 2008, the father obtained confirmation[34] from his employer in the form of an email that they had ‘decided not to renew his contract on a permanent basis and he therefore left [Spain] on the 2/7/2008.”
[34] Form 2 application filed 20 August 2008 including requesting parent’s affidavit sworn 30 July 2008, page 71
The numerous extracts from the affidavits and statements which are before the Court are included above in an effort to convey the respective position of the parties. The evidence conflicts in points of detail and intention and imputed intention. As I have said, each parent peppers his/her purported recollections with his/her reconstructions and suppositions of what the other party contended.
On balance, I find that the father’s case is more constructed than told. It appears to have been worked and re-worked so that facts are overladen with opinions. The affidavits and evidence flit between actual knowledge, supposition and submissions in the proceeding. The evidence upon which the applicant State Central Authority relies causes me disquiet about the father’s evidence and leads me to conclude that, generally, the version of events put forward by the mother is more credible than the father’s heavily crafted reconstructed version.
By way of summary, the common ground includes:-
•the parents met whilst the mother was a tourist in England on a two year working holiday visa;
• the child was an unplanned baby;
• the parents’ relationship was an unhappy one
•the child was born prematurely and before the parents had any plans for his arrival;
•the child’s prematurity necessitated him living apart from his father for the first 4 months of his life. The mother remained in hospital for one month;
• the mother, father and the child travelled to Spain in February 2008 so that the father could take up employment for at least three months;
•initially the mother obtained a visa to enter Spain which expired in may 2008 but was renewed for 3 months;
•the visa entitling the mother to enter England was due to expire during the period of the father’s employment in Spain and did expire in June 2008;
•upon the expiration of the mother’s English working holiday visa, she could not re-enter England within six months and even after six months she had no automatic right to a visa;
•the father and the child are citizens of England and can re-enter England at any time.
Application of the law to the facts of this case
The applicant contends that immediately before the mother’s removal of the child from Spain, the child was habitually resident in England. It submits that England was the place which the child’s parents had “adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether [for] short or long duration”. The applicant’s case is that, in spite of moving to Spain for the father to take up employment, the parents’ life together in England demonstrated the “settled purpose” which Waite J described in Re B (Minors) (Abduction) (No 2) (1993) 1 FLR 993 as follows (at page 995):-.
‘All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’
The applicant relies on the line of authorities which establish that the habitual residence of a child whose parents live together is the habitual residence of the parents.
It is contended on behalf of the respondent mother that she was never habitually resident in England so it is not possible to impute her habitual residence to the child. She maintains that at all relevant times she was, and intended to be, habitually resident in Australia and that she was just touring through England. I am satisfied that the mother always thought of Australia as her permanent home but on the evidence I am unable accept, upon the child’s birth in July 2007, that Australia remained the mother’s place of habitual residence to the exclusion of England.
A person has only one place of habitual residence and it follows that a person cannot be habitually resident in more than one place at the one time (see In the marriage of Hanbury-Brown (1996) FLC 92-671). It seems to me consistent with all of the principles of habitual residence, as I understand them to be, to find on the facts of this case that, upon the mother giving birth to the child in London, the mother assumed England as her place of habitual residence at least for a short duration. In my view, such assumption would have been based principally, if not solely, on her wanting to remain in the same locale as the hospital in which the child spent his first four months and, thereafter, to be with him in the accommodation which she shared with the father.
I am comfortable with the conclusion that, for so long as the mother could physically remain in England or the family went to Spain, the family’s necessary life had “a sufficient degree of continuity” about it to impute to the parties the shared intention to continue to reside in London. So, I reject the mother’s contention that, by virtue of her never having been habitually resident in England, England was not the child’s place of habitual residence.
I regard the child as having been habitually resident in England at least up until the time that the family moved to Spain. To suggest otherwise and say that he was, for instance, habitually resident in Australia or had no place of habitual residence would, in my view, be fictional on the facts of this case. However, it does not follow from the fact that I have deemed the child to be habitually resident in England at one point in time that that would remain the case indefinitely.
Habitual residence is a question of fact which must be assessed having regard to all of the circumstances of the case. Habitual residence is not an immutable or static concept. It must be capable of altering and changing with the circumstances of the relevant persons or else it would lose the character of being “habitual”. The various descriptions of habitual residence as a place “adopted voluntarily and for the settled purposes as part of the regular order of their life” requires that habitual residence must be assessed having regard to the actual experience of the relevant people, not on the basis of their intentions or aspirations.
The alternative contention for the respondent mother is that, if the child was habitually resident in England, that habitual residence was abandoned when his parents took him to Spain and, thereafter, he was either habitually resident in Spain or that he had no habitual residence.
The applicant State Central Authority contends, correctly in my view, that where parents have equivalent parental responsibility (as in this case if the applicable law is that of England) it is not possible for one parent to unilaterally determine or alter a child’s habitual residence. That does not mean, however, that habitual residence can only change when both parents agree that it can change.
In making the assessment of whether a child is habitually resident in a certain place, it is necessary to assess the extent to which circumstances which are extraneous to the parental intentions, may impact on habitual residence as well as what intentions can reasonably be inferred to both parents about maintaining an existing habitual residence.
It seems to me that immediately before going to Spain in February 2008, the father, mother and the child were all habitually resident in England in the sense which would have been sufficient to found an application under the 1980 Convention at that time. However, when the family left England without having made satisfactory arrangements for the mother to be able to return and permitting that circumstance to endure right up until the time it was reasonable for the mother to assume that the father would be taking the child back to England without her, I find that England fell away as their place of habitual residence. Habitual residence cannot be based on intentions or aspirations alone. An intention or aspiration must be accompanied by action (such as a geographical move of people or household goods) or a real prospect of bringing same into effect.
In my view, the basis of imputing to a child the habitual residence of his or her parents who live together is to overcome the fact that children, particularly young children, are not capable of forming an intention to reside in a particular place. Young children are attached to people rather than to places. Habitual residence is a construct employed in the 1980 Convention, to provide the nexus between a child and a place to which the child should be returned for the purpose of having arrangements made for its care. It was always intended to be, and is, distinguishable from, the more legalistic concepts of citizenship or domicile (see the discussion of Kay J in Department of Health and Community Services v Casse (1995) FLC 92-629 at 82,312).
I have found that the child was habitually resident in England until February 2008 because he was only seven months old and that is where is parents were able to live and were actually living. England remained the child’s place of habitual residence until prior to the alleged wrongful removal from Spain when his parents lived in Spain. His parents did not or could not intend to live in England. To do so would be to ignore the fact that, immediately prior to the mother’s allegedly wrongful removal of the child from Spain, the mother’s immigration status precluded her re-entry into England. Without the mother being able to re-enter England, it can hardly be said that the parents viewed a return to England to be “part of the regular order of their life together”.
Insofar as the circumstances of the present case can be analysed against the applicable law, I think that the key lies in what can be discerned as the parents’ “settled purpose” or “shared intentions”. If and when, the shared intention falls away or is no longer viable, any concept of habitual residence which was constructed on the basis of the previously held shared intention may be superseded or extinguished.
The issue of what constitutes “shared intention” was considered by the Full Court in Dally-Watkins and Director General Department of Child Safety [2006] FamCA 93. Their appeal Judges Finn and May JJ (with Holden J dissenting) referred to the statement in Re B (Minor)[35] p.995 to the effect that habitual residence refers to the parents’ habitual abode in a country which parents have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration. As to the observations of Waite J observed ‘all that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’. Specifically, in relation to the characteristics of the intention, their Honours stated, at paragraph 48 of the majority judgment:-
We regard the word “shared” as having the same meaning as “same” or “common”. That is, that the parties in question had the same or a common intention about their future living arrangements, even though – life being what it is – they may not have had a specific discussion and/or reached a clear agreement regarding their future living arrangements.
[35] [1993] 1 FLR 993
In Dally-Watkins and Director General Department of Child Safety, their Honours were satisfied that the mother of the children only entered the United States to see if the family could see how life “worked out”. As such, the majority found that the mother never formulated an absolute intention to settle in the United States. It seems, Dally-Watkins’ case that the mother’s qualified intention was considered, at least by the majority, to be incapable of constituting an intention which was shared with the father.
I have already mentioned that the parents’ association was not particularly happy. That is evident from the papers. In particular, there is no indication that the parents worked together as a family for the mutual benefit of the other. I do not mean to suggest that only amicable families or couples have habitual residence. However, where a family works towards common purposes or has lived together for an extended time, certain patterns emerge and a common intention is not difficult to infer on all of the members of the family. The present case is quite different.
The following extracts of evidence illustrate to me that the parents led parallel rather than cooperative lives even after the birth of the child. In all the circumstances, it makes it difficult for me to conclude that they operated and ordered their lives as a couple and made decisions together and on one another’s behalf. I am not left with the impression that they shared anything over and above a child and some accommodation or that the atmosphere was conducive to them conceiving of plans for the future. For instance:-
a)The father’s evidence of friction about household responsibilities including[36] “[t]he arguments that [the mother] and I had were mostly about her reluctance to pay her way during our relationship and help me with the cooking and cleaning of our accommodation which she more than mostly left to me to pay for and keep clean.”
[36] Form 2 application filed 20 August 2008 including requesting parent’s affidavit sworn 30 July 2008, paragraph 6
b)The statement of Mr WN that “[w]hen [the child] was discharged from hospital in November 2007, [the father] once again found them suitable accommodation for all three of them and had [the child] registered as [Fortescue]. [The mother] was unable or did not want to breast feed [the child], so [the mother] used to express her milk and then [the father] would get on his bike and take it to hospital at all hours of the day and night. When [the child] eventually arrived home, considering what he had gone through, he was a happy little chappie. Again the same situation was developing though, it was always [the father] who bought the food, fed [the child], changed him and did the cleaning and cooking. Whenever I went over to their new accommodation, [the father] would ask [the mother] to make a cup of coffee, but she never got around to it so [the father] would end up making it. I used to play with [the child] when I was there, but I never saw [the mother] playing with him. She did not seem to show any natural mothering instincts and seemed to treat [the father] as an inconvenience.[37]”
c) And Mr WN’s later description of the mother.
“My overall impression of [the mother] is by what I actually saw. [The mother] seemed lazy and she saw [the father] as a meal ticket, had she wanted to separate from [the father], she had ample opportunities to do so, even before [the child] was born, but she did not. Un-interested in her own child ([the subject child]) she took [the child] back to Australia just to save face. It appeared to me that [the mother] did not want [the child]; she never bought him anything like new mother’s do. She did not like to spend any money or time on [the child], [the father] or essential things for the home. [The mother] only ever thought of herself, nobody else! When [the mother] took it upon herself to abscond, she once again demonstrated her lack of care for anybody but herself. [The child] had a slight swallowing problem and oxygen intake problem, I doubt very much that [the mother] had a doctor check that [the child] was fit to fly. I also doubt that she asked for the pilots’ permission for [the child] to fly on a long haul flight, because of the possible difficulties [the child] might encounter! No, [the mother] as usual was only thinking of herself.[38]”
d)The evidence of the child’s paternal grandmother that “At one time [the mother] did go out to work for a short period of about 2 weeks. [The father] stayed at home and cared for [the child]. [The father] expressed his concern that during this period she preferred to go out for a drink with some work mates after work than come straight home to her son whom she had not seen all day.[39]”.
e)And the further evidence of the child’s paternal grandmother that the mother’s feeding of the child was substandard and a matter upon which parents disagreed.
“20.The matter of cleanliness, hygiene as well as [the child’s] feeding regime was an obvious issue between [the father] and [the mother]. [The mother] was still not doing any housework or cooking and in my opinion was not introducing [the child] to the proper food for a baby of his age. More often than not she would just give him a bottle to feed as making or feeding him solids seemed too much effort.
21.[The father] had on more than one occasion mentioned to me that he had expressed his concern to [the mother] about what and how [the child] was being fed. [The mother] refused to take any notice of [the father’s] concern and just did things the way she always has.[40]”
[37] Form 2 application filed 20 August 2008 including statement of Mr WN dated 30 July 2008, page 87
[38] Form 2 application filed 20 August 2008 including statement of Mr WN dated 30 July 2008, page 88
[39] Form 2 application filed 20 August 2008 including statement of the paternal grandmother dated 31 July 2008, page 89
[40] Form 2 application filed 20 August 2008 including statement of the paternal grandmother dated 31 July 2008, pages 91 and 92
There are numerous other similar statements in later evidence forwarded by the father in support of the applicant’s case. However, that later evidence follows on extensive allegations of violence, general nastiness and alcohol abuse having been made by the mother against the father in a long affidavit sworn 30 September 2008. I note that the father denies any domestic violence, nastiness and consuming alcohol to excess. It is fair to assume that the mother’s long affidavit about violence and intimidation may have ignited further resentment in the father and his camp of witnesses which led the father and his supporters to report the history of the parents’ time together from a perspective which is critical of and negative in relation to the mother. For that reason, whilst not discounting what the father says in the later material, it seems to be that the earlier evidence which was forwarded in support of the father’s request/application is a less coloured account of the parents’ relationship, from the father’s perspective, than the subsequent account may be so I rely on it when assessing the environment in the parents household.
Based on the father’s depiction of the parents’ life together, I am satisfied that there was little by way of discussion, co-operation and mutual thought about life as a family or the common good. This may have been as a result of the child’s extreme prematurity and the associated trauma, which would be an extreme test of experienced parents let alone a mother and father who were first time parents with, it seems, little or no personal regard or respect for each other.
It seems to me, even on the father’s early evidence, that the dynamics of the parents’ relationship were unhappy. I find that they conducted their lives in a parallel rather than joint or cohesive manner.
Most significantly, I am not satisfied that when the family departed England, they had “the same or a common intention about their future living arrangements” over and above being prepared to go to Spain so that the father could take up some employment on a probationary basis.
I accept the father’s evidence that it was his intention to return to England if the employment in Spain was not suitable. However, I do not accept that the mother shared an intention to return to England or that it is reasonable to infer that she did so. The reason that I will not infer that the mother intended to return is that, on my understanding of the evidence, both parents knew that the mother’s English visa would expire whilst they were out of the country and that the mother could not re-enter England on any basis within six months of departing.
The most I can infer is that the each parent left England with a preparedness and curiosity to experience life in Spain and to then see what flowed. I am not satisfied that there was any agreement or actual intention or intention capable of being inferred that extended beyond arriving in Spain.
I do draw the inference that, when each of the parents left England, they each held an independent intention to do pretty much what he/she wanted with scant regard to the interests of the other parent. I am not critical of them for their lack of regard for the other parent. It does seem that both were very attached to the child, it just a pity that their respective attachments fell short of recognising that the child would benefit from having two parents and that they might bring about a circumstance where that was viable.
I cannot make the finding for which the applicant State Central Authority contends, that the parties’ actual or inferred intention was to return to England if they did not wish to remain in Spain.
I conclude that the child was not habitually resident in England immediately prior to the mother’s removal of him (from Spain) to Australia on 28 June 2008 and that the removal was not in breach of any rights of custody of the father which arise by operation of English law.
It was not contended by the applicant, as a fall back position or otherwise, that the child was habitually resident in Spain (also a Convention country) immediately prior to being removed to Australia and that the mother’s removal was in breach of the father’s rights of custody arising under Spanish law. The acquisition by the child of Spain as a place of habitual residence was not supported by the evidence upon which the applicant relied or the findings which I have made.
The present application of the State Central Authority must fail.
It follows from my conclusions that, as at 28 June 2008, the child did not have a place of habitual residence.[41] There has been commentary and discussion about the possible adverse consequences for a child who falls outside the purview of the 1980 Convention. Butler-Sloss LJ remarked in Re F (A Minor) (Child Abduction) (1992) 1 FLR 548 (at 556) that:-
[…] it is important for the successful operation of the Convention that a child should have, where possible, an habitual residence, otherwise he cannot be protected from abduction by a parent from a country where he was last residing. Paraphrasing [counsel’s] argument, we should not strain to find a lack of habitual residence, where on a broad canvas, the child has settled in a particular country.”
[41] See discussion of Jarrard J in the unreported decision of Director-General Department of Families and K delivered in Brsbane on 2 March 2001 at page 15.
From this jurisdiction we have the oft quoted comments of Chief Justice Nicholson (as he then was) in Cooper v Casey (1995) FLC 92-575, at 81,696 that:-
“As was pointed out during the course of argument in the present case, the making of a finding that a child has no habitual residence could easily operate to defeat the purpose of the Convention and leave children open to the possibility of repeated abductions by both parents.”
I, with respect, agree with their Honours. However, the 1980 Convention does not apply to all children who move between contracting states. The 1980 Convention is framed in such a way as to protect only certain children from the harmful effects of international child abduction. There are other conventions from the Hague Conference, such as the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and measures for the Protection of Children, 1996 (“the Child Protection Convention 1996”) through which different measures for the protection of children in international situations can be achieved. Australia and 15 other countries have acceded to or ratified the Child Protection Convention 1996. Both Spain and the United Kingdom signed the Convention on 1 April 2003 but to date have not ratified it so that the 1996 Convention has not entered into force between Australia and the United Kingdom and/or Spain.
Before leaving the operation of international conventions which have been ratified by Australia, I wish to make an observation about mediation in matters like the present case.
The result of this proceeding was always going to be harsh. Either the child would be ordered to be returned to the United Kingdom in the care of the mother who would have to take proceedings in the United Kingdom, absent family or friends, to respond to the father’s case for parenting orders and to try to secure an entitlement to return to Australia lawfully with the primary care of the child. As it has turned out, the father faces the prospect of conducting a parenting proceeding across international borders in a jurisdiction with which he is not familiar and is currently not engaged in any personal capacity.
It seems to me that this was a proceeding in which it may have been desirable to offer the parties an opportunity to resolve the matter by mediation, properly resourced between the United Kingdom and Australia, with the father attending in Australia after having had the advantage of receiving advice on the likely outcomes in both jurisdictions consequent upon an order being made or refused. Both the United Kingdom and Australia have designated judicial officers to the International Hague Network of Judges who can facilitate mediation in some respects. Mediation is a concept in place in both countries in the handling of domestic disputes. However, the real impetus and the practical resources for any trans-border mediation must come from, or via, the responsible Central Authorities. It is the court’s task to determine the legal dispute and to avoid undue delay in doing so. It follows that mediation, if it is going to be employed, must be considered and occur well prior to the final hearing. That said, I note that Article 7(d) of the 1980 requires that Central Authorities
“[…] shall take all appropriate measures […] to secure the voluntary return of the child or to bring about an amicable resolution of the issues.”
The 1980 Convention does not mandate mediation. Neither does it preclude mediation being arranged between contracting states.
I am mindful that these proceedings are interim proceedings directed to the issue of venue. As such, I have considerable sympathy for the child’s predicament because he is, I assume, no further advanced in being able to spend time with the father or the father with him. An unfortunate aspect of this proceeding is that all the focus is on the past conduct of the parents and there is no focus on what will be best for the child into the future. A mediation process, unlike a judicial determination in the present case, can be directed to both.
Of course, the failure of the present application does not adversely affect the father’s rights at common law. Neither does it affect his rights under the provisions of our domestic law about parenting arrangements for children, the Family Law Act 1975, to apply to this Court for an order that the child live with, spend time with and/or communicate with him. Likewise, the father could apply to this Court to have any parenting proceedings take place in the United Kingdom.
Annexed to the mother’s affidavit sworn 30 September 2008 are reasons by Cronin J of this Court which describe extant proceedings between the mother and the father:-
•Initiated by the father on 9 July 2008 in the Family Division of High Court of Justice in the United Kingdom; and
• Initiated by the mother in this Court on 3 July 2008.
Various interim orders were made by Cronin J on 3 July 2008 which, amongst other things, prohibited the removal of the child from Australia by the father and provided that the child live with the mother. Those orders are still in force. The proceedings were adjourned to 16 July 2008 and further adjourned to 16 December 2008. I do not know what has become of the proceedings in the United Kingdom.
In the event that the father elects to participate in the parenting proceedings before this Court, I invite him, or those who represent him, to notify this Registry of the Court, through Registrar Mestrovic or Registrar Field. The father can advise whether he will travel to Australia to appear or proposes to participate electronically from outside Australia. Appropriate and timely arrangements can be made.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 16 December 2008
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