FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & WESTON | [2010] FamCA 599 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Habitual residence |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Mr Weston |
| FILE NUMBER: | MLC | 658 | of | 2010 |
| DATE DELIVERED: | 16 July 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BENNETT J |
| HEARING DATE: | 5 AND 8 JULY 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS J GREENHAM |
| SOLICITOR FOR THE APPLICANT: | DEPARTMENT OF HUMAN SERVICES, LEGAL SERVICES BRANCH |
| COUNSEL FOR THE RESPONDENT: | MR A ROBINSON |
| SOLICITOR FOR THE RESPONDENT: | STYNES DIXON LAWYERS |
Orders
IT IS ORDERED:
That the application of the State Central Authority filed on 19 April 2010 be and is hereby dismissed.
That the passport of the child Z born … April 2008 currently held for safekeeping in this Registry of the Court be returned to the father Mr Weston.
That paragraphs 3, 4, 5, 6 of the Order made on 23 April 2010 be and are hereby discharged.
That the father’s application filed 25 January 2010 be referred to Registrar Mestrovic for fixing for interim hearing in the appropriate list.
IT IS REQUESTED that the Australia Federal Police remove the name of the child Z born … April 2008 from the Airport Watch List at all points of international arrivals and departures in Australia
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Weston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 658 of 2010
| STATE CENTRAL AUTHORITY |
Applicant
And
| MR WESTON |
Respondent
REASONS FOR JUDGMENT
By application filed 19 April 2010 the State Central Authority seeks the return to the United Kingdom of the child Z born in April 2008 (now 2 years) 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’) and which entered into force between Australia and the United Kingdom since 1 January 1987.
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. The purpose of return is to allow appropriate parenting arrangements to be made for a child within the legal and social framework of the country of his or her habitual residence.
The applicant in these proceedings is the State Central Authority (SCA). The SCA acts on the request of Ms Weston who is the child’s mother. She is 35 years old, and resides in London, United Kingdom. The respondent, Mr Weston, is the father of the child. He is 37 years old, residing with his parents in a suburb of Melbourne, Australia.
The SCA alleges that the mother agreed that the child could remain in the United States of America (USA) during the father’s employment there and then the father would return the child to the United Kingdom. According to affidavit material provided by the mother, there was no specific date by which the child was required back in the United Kingdom. In her oral evidence she said that the father agreed to return the child to London at the expiration of three months. On 2 March 2010 the father removed the child from the United States of America and brought him to Australia and it is that act which, it is alleged, constitutes the wrongful removal by the father of the child in Australia.
The father failed or neglected to file a response by 7 May 2010 as he was required to do. The response was to specify the basis of any opposition on his part to the child being returned to the United Kingdom.
I required counsel for the father to state orally the basis of the father’s opposition to the return application. Mr Robinson identified two grounds. First, that the child was not habitually resident in the United Kingdom as at 2 March 2010. Second, that the father’s removal of the child from the USA to Australia was not wrongful because the effect of the decision by the Trial Court, Probate and Family Court Department, Commonwealth of Massachusetts on 22 February 2010 (Judge Smoot) was that the removal was not in breach of the mother’s rights of custody in Massachusetts, USA or the United Kingdom. Judge Smoot’s decision was to dismiss an application brought by the mother to restrain the father from removing the child from Massachusetts in the face of the father’s intention to take the child to Australia to reside permanently.
Relevantly for this case, reg 16 provides that:-
(1) If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A) For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child's removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
The return remedy is only available to the SCA if:-
a)The child was habitually resident in the United Kingdom at the relevant date, and
b)the removal was in breach of rights custody which were being exercised by the mother or which would have exercised but for the father’s removal of the child to Australia.
Furthermore, the rights of custody must be rights which accrue to the mother pursuant to the laws of the United Kingdom, which is allegedly the convention country of habitual residence. If the child was not habitually resident or the mother did not have the required rights of custody, the Regulations are not engaged and the SCA’s application must fail.
Counsel for the SCA submitted a case outline document[1] which was concise, helpful and filed well in advance of the hearing. The father’s case outline[2] was received one working day prior to the hearing. Counsel for the father did not adhere to his case outline document in its totality. He abandoned certain grounds which appear at paragraphs 12 and 13 of the document, being an alternative position that the child was not habitually resident anywhere at the relevant date and that the application was filed more than one year after the removal of the child from the united Kingdom and “the SCA has not satisfied the criteria of Regulation 16(2).”
[1] Exhibit “SCA2”
[2] Exhibit “F1”
Onus and standard of proof
The onus of proof lies with the SCA in relation to establishing the habitual residence of the child.
As required by s 140 (1) of the Evidence Act 1995 (Cth) I will apply the balance of probabilities as the standard of proof.
In Re: H & Ors [3], a case involving a wardship application, Lord Nicholls discussed what is meant by “balance of probabilities”. 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.
[3] (1996) 1 All ER 1 at 16.
In these reasons, statements of fact are findings of fact.
Evidence
The SCA relied upon the following evidence:-
a)The application filed 19 April 2010;
b)the affidavit of the mother affirmed 12 April 2010[4];
c)The affidavit of Anne Carolynn Usher (the mother’s lawyer) sworn 12 April 2010[5] which includes copy documents from the proceedings initiated by the father in Australia and by the mother in Massachusetts and in the United Kingdom;
d)The affidavit of Anne Carolynn Usher (the mother’s lawyer) sworn 1 June 2010 about the mother’s entitlement to live and work in the United Kingdom on a Tier 1 (General) Visa;
e)The affidavit of the mother affirmed 11 June 2010.
[4] Pages 20 to 27 of the SCA’s application
[5] Pages 28 to 113
I have regard to the facts set out in the application and the materials annexed to the application. I do so in light of the evidentiary provisions in r 29(2) which provide inter alia that the application, documents attached to or given in support of the application or request are admissible as evidence of the facts stated in that application, request or document.
The father relied upon affidavits sworn by him on 6 May 2010 and 1 July 2010 and the affidavit of Mr B sworn 22 April 2010 about the terms of the father’s employment in the USA.
In addition, there were various exhibits.
By letter dated 25 June 2010 notice was given on behalf of the father that he required the mother for cross examination. That notice was provided to my Chambers and preliminary enquiries were made as to the feasibility of establishing a video link between this Registry and the Royal Courts of Justice in London.
At the earliest opportunity once the hearing commenced, cross examination of the mother was opposed by counsel for the SCA. After hearing submissions, I ordered that cross examination occur, via video link, to be confined to the issue of habitual residence and said that I would deliver my reasons subsequently. The following 14 paragraphs constitute those reasons.
Initially, counsel for the SCA submitted that leave was required before cross examination could occur and that, in this instance, leave ought not be granted. Ms Greenham relied upon certain passages from MW v Director-General, Department of Community Services [2008] HCA 12:-
38. In the present case, when giving his ex tempore reasons Steele J said: "As is typical of these applications, the factual matters have been dealt with on affidavit evidence and have not been the subject of cross examination."
39. Upon various disputed events in the relationship between the parents, his Honour said it was "not possible to form a conclusive view ... without lengthy and detailed cross examination, which is not possible".
40. In the Full Court, the majority, after noting that the proceedings before the primary judge "were conducted entirely on the papers", indicated that therefore it was open to the Full Court to substitute its own findings of fact.
41. The material before the primary judge comprises more than 200 pages of the appeal record in this Court. It includes affidavits sworn by the father in support of the application by the Authority on 3 October 2006 and thereafter on 28 November 2006, and by the appellant on 10 November 2006 and 14 December 2006. That last date was shortly before the hearing by the primary judge. The father's solicitor in Auckland also provided affidavit evidence which, among other topics, considered some of the relevant provisions of New Zealand legislation. Some affidavits by the other New Zealand deponents were filed in support of the father's case, some in support of the appellant.
42. Much of the affidavit evidence dealt with disputed issues of fact and alleged fact (particularly relating to domestic violence between the parents) which are not immediately relevant to the factual and legal issues which are still in dispute in this Court. These include the issue whether the appellant was living with the father as a de facto partner at the time of the birth of the child. It is unfortunate that the answer to such a question does not more readily appear on the evidence.
43. Both at first instance and in the Full Court much attention was given to what were said to be discrepancies in the affidavit evidence of the appellant which bore upon this issue. Perceived weaknesses in her account were relied upon to strengthen the positive case for a conclusion of wrongful removal or retention of the child which it was for the Authority to establish.
44. The deficiencies in the appellant's affidavit evidence would not have been left for textual analysis had one of several courses been followed. Upon application, or at the initiative of the Family Court itself, the proceedings may have been adjourned for the prompt provision of more adequate affidavit evidence. Leave may have been sought by the Authority for the cross-examination of the appellant (but cf DP v Commonwealth Central Authority [2001] HCA 39; (2001) 206 CLR 401 at 426 [77]; [2001] HCA 39)..
45. Section 98 of the Act states that the Rules of Court may provide for evidence of any material matter to be given on affidavit at the hearing of proceedings other than divorce or validity of marriage proceedings. The Family Law Rules 2004 ("the Rules") are so drawn as to require evidence in chief to be given by affidavit (r 15.05). But exercise by the Family Court of its general powers expressed in Pt 1.3 of the Rules would have allowed an order permitting cross-examination of the appellant; such leave might properly have been limited by the Family Court to particular areas of dispute.
46. Cross-examination in interlocutory applications generally is not to be encouraged. But an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55; [2007] 3 WLR 975 at 980. The oral evidence in that Convention application was heard over two days (See In the Matter of M (Children) [2007] EWCA Civ 992 at [5].
47. Regulation 15(2) obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".
48. The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
49. Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. The references to "summary procedure" and to the dealing with applications on affidavit evidence and "in a summary manner" by the Full Court in In Marriage of Gazi (1992) 111 FLR 425 at 428 are apt to mislead. This is particularly true of the statement in that case [428]:
"The primary purpose of the Convention, the relevant legislation and regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody or access [sic] (see Convention, Arts 7 and 11, Family Law (Child Abduction Convention) Regulations, reg 19(1)). Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate".
50. The danger in reading such remarks too literally (and without regard to the circumstances of each particular case) is apparent in situations such as that considered in the United States by the Court of Appeals for the Third Circuit in In re Application of Adan ([2006] USCA3 42; 437 F 3d 381 (3rd Cir 2006)). An application by the father for the return of his child to Argentina was resisted on the grounds that he had not established his custody rights under the law of Argentina and there was grave risk there of harm to the child. After considering the cursory treatment by the United States District Court of the application, the Court of Appeals said:
"Although the Convention seeks to facilitate the prompt return of wrongfully removed children to their country of habitual residence, it does not condone deciding that a child is another country's problem and dumping her there, and nor do we."
No criticism of that degree is directed to the conduct of the present case, but In re Application of Adan provides a caution against inadequate, albeit prompt, disposition of return applications.
(footnotes omitted)
Counsel for the SCA conceded, appropriately in my view, that mention by the High Court of “leave” to cross examine in paragraph 45 of the above extract does not constitute an authoritative statement, binding on me, that cross examination can only be permitted with leave. She went on to submit that the circumstances of each case must be assessed including with a view to relevance and a prompt determination. I accept that submission as correct.
Rule 15.14 of the Family Law Rules 2004 (FLR 2004) provides that a party seeking to cross-examine a deponent must, at least 14 days before the relevant date, give to the party who filed the affidavit a written notice stating the name of the deponent who is required to attend court for cross-examination. If a deponent fails to attend court in response to a notice, the court may refuse to allow the deponent’s affidavit to be relied on, allow the affidavit to be relied on only on the terms ordered by the court, or order the deponent to attend for cross-examination, which would usually entail an adjournment. If a deponent on notice attends for cross examination and is not cross-examined, or the cross-examination is of little or no evidentiary value, then the party who required the witness’ attendance may be ordered to pay the deponent’s costs for attending and any costs incurred by the other party because of the notice.
No issue was taken by the SCA with the notice for cross examination being provided only nine days prior to the hearing. Nor was I addressed on any conflict between r 15.14(3)(a)or (b), which provide that the evidence of a witness who is not produced for cross examination may be disregarded or admitted subject to conditions, and r 29(3), which provides that an affidavit of a witness who resides outside Australia that is filed in a proceeding such as this is admissible as evidence even if the witness does not attend for cross‑examination. However, I am comfortable to conclude that the specific provision in the Regulations, which implement the 1980 Convention, overrides the general provision in the FLR 2004.
The Full Court of this court has held that Convention proceedings should normally proceed without cross-examination, although there might be circumstances making it appropriate to have some cross-examination. I accept that submission. The leading Full Court authorities in that respect include Gazi and Gazi (1993) FLC 92-341; [1992] FamCA 80, Police Commissioner of South Australia v Temple (No 2) (1993) FLC 92-424; Hanbury-Brown and Hanbury-Brown; Director General of Community Services (1996) FLC 92-671; [1996] FamCA 23; Director-General, NSW Department of Community Services and JLM (2001) FLC 93-090 at p 88,603; [2001] FamCA 1338. Also, Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011 at p 87,223; [2000] FamCA 253 and Regino and Regino (1995) FLC 92-587.
The Full Court said in JLM [2001] FCA 1338 (2001) 28 Fam LR 243; [2001] FamCA 1338:-
[14] The Full Court has considered the question of cross-examination of deponents of affidavits in relation to applications made pursuant to the Regulations on a number of occasions; see In the Marriage of Gazi (1992) 111 FLR 425 ; 16 Fam LR 180 ; (1993) FLC 92-341 ; [1992] FamCA 80, In the Marriage of Hanbury-Brown (1996) 130 FLR 252 ; 20 Fam LR 334 ; (1996) FLC 92-671; [1996] FamCA 23 and PCR and BEM (unreported, [2001] FamCA 136). As Kirby J observed in De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 690 ; 139 ALR 417 ; 20 Fam LR 390 ; (1996) FLC 92-706 ; [1996] HCA 5, a judge of the Family Court enjoys a wide discretion in the procedures to be adopted in such applications but that discretion is not so large as would defeat the attainment of the objectives of the Convention and Regulations. Notwithstanding the speedy process and summary procedure envisaged by the Regulations, in appropriate cases, cross-examination of the deponents of affidavits and the hearing of oral evidence should not only be permitted but may well be essential in the interests of justice. Such an approach is not inconsistent with the authorities to which we have referred.
I agree with those comments.
In the present proceedings, counsel for the father seeks to cross examine the mother in relation to:-
a)habitual residence and, in particular, the state of mind of the parents when they left London in May 2007;
b)the fact that the mother applied for custody orders in Massachusetts;
c)credit generally.
These proceedings under the Regulations are not proceedings to which the less adversarial provisions of Division 12A of Part VII of the Act apply. These are, accordingly, adversarial proceedings albeit with some special allowances made for the process by r 29 in relation to evidence.
Cross examination is a cornerstone of the adversarial system. To refuse cross examination when it is sought on matters assured to be relevant to the determination of a matter is to deny an element of natural justice. In the case of domestic proceedings involving children, our legislature decided that some parents’ rights should give way so that determinations could be made in as child focussed manner; Division 12A of Part VII of the Act is a consequence of that decision. However, there has been no such development in relation to proceedings under the Regulations.
I do not mean that there should always be cross examination in return applications under the Regulations. An obvious pre-requisite is that there be some conflict in evidence which is relevant to a determination of a real issue in the proceeding. There is a difference between matters which one party would like to think are relevant and those which actually are relevant to make out, say, an exception to mandatory return or to inform the court’s discretion not to return. Australia is obliged to determine these applications promptly. There is the time limit of 42 days which may be more aspirational than real. However, it is clear that we must proceed as speedily as possible. A further countervailing factor is likely to be delay and the promptness (or lack of it) with which the application can be determined if cross examination is permitted. Litigants and those who advise them must run their cases prudently and responsibly. Counsel cannot rely on receiving a brief late in proceedings and there being insufficient time to arrange cross examination. Accordingly, cross examination may not be permitted if it is sought inappropriately late in the proceedings and means that a trial cannot proceed. There is the issue of expense. It should not be assumed that the court will absorb the often considerable expense of video links in all cases. A party requiring cross examination should be prepared to meet the costs associated with cross examination, at least initially, or be able to satisfy the court that it is not appropriate that they do so. Electronic means other than video conferencing should be considered. A medium which permits the court to observe the witness is likely to be preferable to merely audio but, when all is considered, an audio link might be better than no cross examination at all.
In this case, cross examination did not require any adjournment and did not delay the determination of the matter. The expense to the court is estimated at less than $300 per hour. I limited the father, through his counsel, to matters directly relevant to habitual residence. I did not permit questions which went solely to credit or questions which required an understanding of the law applicable to parenting proceedings in Massachusetts. The video link was available for two hours. Counsel for the father was informed to be in a position to conclude his cross examination within 1.25 hours and did so without apparent difficulty.
The position of the SCA was that, if the mother was cross examined, it wished to cross examine the respondent father. That was a reasonable position to take and the father was cross examined on the second day of the hearing.
It is common practice for these applications to be dealt with in the absence of cross examination which is very often a sensible course. However, in this particular case, where cross examination was sought, I found it to be of use.
Litigation history in this court
As will become apparent, this Hague proceeding is the fourth litigation involving Z’s parents world wide and the second involving the child in Australia.
On 25 January 2010 the father filed parenting proceedings, under Part VII of the Family Law Act1975 (Cth), seeking that he and the mother have shared parental responsibility for the child, that the child live with the father and spend time with the mother “as may be agreed between the parties”. Both parents and the child were outside Australia at the time but the application was able to be made based on the citizenship of the father and child.[6] The application was listed for hearing in the Federal Magistrates Court on 9 March 2010 but adjourned, by consent, to 4 May 2010.
[6] S69E(1)(b) & (d) provide, inter alia, that proceedings may be instituted in relation to a child if the child or party is an Australian citizen on the day that the proceeding is filed
On 14 April 2010 the father filed an application in a case seeking orders which would prevent the child being taken out of Australia. No orders were made on that application. The mother did not file any response or cross application.
On 23 April 2010 the mother and father agreed that these proceedings be stayed and, on 28 April 2010, the proceedings were transferred to the Family Court. Accordingly, the court can, and will, make some direction as to those proceedings at the conclusion of this matter.
The application of the SCA was filed on 19 April 2010. On 23 April 2010 orders were made to progress the matter towards this trial. Through his counsel, the father informed the court that he would be working in London from 5 to 15 May 2010. Two matters flowed. First, counsel who represented the mother (as opposed to the SCA) requested that the father consider taking the child to London for the duration of his work so that he could see the mother. The father refused to take the child with him and no application was made subsequently. Second, the parties agreed to a mediation to be conducted in London during the father’s time there. I am grateful for the information passed on through Lord Justice Thorpe’s Chambers as to appropriate mediators. I understand that the parties used the services of Ms K. The parties bore the cost of the mediation themselves. The mediation did not resolve the dispute.
Background
The mother and father met at a work function, in London, in mid-2001. Neither were previously married. Both were working in the same professional field. The mother, who is South African by birth, was on a working holiday visa. The father, who is Australian, was on a visa which entitled him to work. The parents began keeping company in December 2001 and commenced cohabitation in April 2002. They married in London in February 2003.
Shortly prior to marriage, the parents made arrangements for the mother to be able to enter Australia and reside here. There are several declarations completed for immigration purposes[7] upon which the respondent placed reliance as indicative of the mother’s long held intention to reside in Australia permanently. I do not accept that they are probative of anything other than the parties’ desire that she be able to enter and reside in Australia as at November 2002.
[7] Father’s affidavit sworn 1 July 2010, annexure “NCW13”
In April 2003 the parents resigned their employment in London and, after holidaying in Europe, packed up their belongings and left for South Africa en route to Australia. They went through another wedding ceremony in South Africa and the mother collected various keepsakes such as jewellery, photographs and clothing and they travelled on to Australia arriving in May or June 2010.
The parents resided in a property, in Melbourne’s southeast, which the father had acquired from his late grandmother’s estate. The parents had a further marriage celebration. That property has subsequently been sold.
Both parties obtained employment in Australia in 2003. The mother commenced to suffer from depression in 2004 and, rightly or wrongly, identified her dislike of life in Australia and the father’s “controlling” behaviour as major contributing factors to her condition. In any event, she yearned for her previous London lifestyle. The mother sought psychological treatment but I am satisfied that her dislike of living in Australia did not abate. I do not accept the father’s evidence that he and the mother merely wanted to travel out of Australia before they had children but shared, with him, a mutual intention to return to Australia permanently and in the long term.
In the context of the whole of the case and having heard the evidence of each parent tested in cross examination, my impression is that this period was the beginning of the manifestation of an irreconcilable conflict for the couple about where they wanted to live in the long term. The father has always wanted to set down his permanent roots in Australia but was prepared to postpone that for the sake of the marriage until such time as he realised that he could not change the mother’s mind about Australia. Once in Australia in 2003, the mother became resolute that she would never live here and, likewise, when in Massachusetts in 2010, became resolute that she could not live there. Neither were interested in living in South Africa.
In February 2006 the parties left Australia bound for London via South Africa. Their intention was to live and work in London. The father retained the dwelling in southeast Melbourne. The mother’s keepsakes were stored, free of charge, at the home of the father’s parents where, apart from some jewellery, they still remain.
Upon arriving in London, the parents leased accommodation, for 12 months, and obtained employment with their previous employer. In early 2007 the father changed his employment to work for F Travel Limited. In cross examination, the father clarified that his employment did not entitle him to any inexpensive air travel. This was employment as an analyst for a media company.
A few months after the father’s new employment, the parents purchased a property in London and lived in it. The father’s evidence is that this was purely an “investment” property. The mother says it was their home. The evidence is not clear as to whether the acquisition was financed, in part, from any proceeds of the sale of the southeast Melbourne property. Approximately six months later the parties placed the property on the market for sale but then withdrew it because of market forces. The father says that this is corroborative of the fact that it was merely an investment. The mother says that the couple were looking to buy a larger home so they could start a family, in London. I prefer the mother’s version which was, I note, not denied by the father. This property in London is now the only property owned by either party anywhere.
Z was born in April 2008. The mother and baby went to South Africa in October 2008 and it is common ground that the parents anticipated that the mother would return to employment (outside the home) in early 2009. However, in December 2008 or January 2009, the father advised the mother of a job opportunity in Massachusetts USA which would, in due course require the family’s relocation to the USA. This was a matter dealt with exhaustively in affidavit evidence and in cross examination due to the bearing it has on habitual residence.
In general terms, the wife contends that the family’s move to Massachusetts was only temporary and that the father agreed, before their departure from London, that they would return after the conclusion of his employment or, as she deposes the conclusion of his “secondment”. In contrast, the father’s case is that the family relinquished London as a home base for any purpose and moved to Massachusetts to live, with a view to eventually living in Australia.
If the father’s position is correct, then the child ceased to be habitually resident in the United Kingdom when the mother and the child left for Massachusetts on 18 April 2008 and the current application must fail.
The first evidence about the nature of the family’s move to Massachusetts appears in the father’s affidavit sworn in support of his parenting proceedings, in which he deposes “in April 2009 we relocated to [Massachusetts].”[8] In the mother’s affidavit in support of a petition for custody and to prevent the father removing the child from Massachusetts, the mother deposed “In April 2009 the father was transferred to [Massachusetts]. The family moved to [Massachusetts] that month, where they resided together until late July 2009.”[9] The mother’s attorney in the USA proceedings, Anne Carolynn Usher, swore an affidavit on 12 April 2010 in which she deposed:
[in] or around May 2009 the father was posted by his employers ([F Ltd]) to [Massachusetts] with a twelve month contract. The parties agreed to move for that limited period of time. The matrimonial home which they had purchased in London was rented out. Bank accounts were retained in the UK and as I understand it, my client continued to receive Child Benefit for [Z].[10]
[8] Father’s affidavit sworn/affirmed 11 January 2010 [6]
[9] [9] of mother’s verified petition for custody at p 76 of SCA application filed 19 April February 2010
[10] [4] at page 30 of SCA application filed 2 February 2010
At trial, there was no cross examination or other evidence about the mother receiving welfare payments, presumably as a resident. Counsel for the SCA conceded that the statement was hearsay but that the effect of the evidentiary provisions in r 29 is to make it admissible as evidence of the facts. However, based on the fact that the mother’s passport for the relevant period[11] is endorsed that she have no access to public funds, it was agreed that the statement by Ms Usher that the mother continued to receive “child payments” was not probative evidence in relation to habitual residence.
[11] Exhibit “SCA1”
On 12 April 2010 the mother made an affidavit in support of the request that underlies this request. She deposed:[12]
[during] the period 4 January to 7 April 2009 [the father] several times visited [Massachusetts] for periods of anything from two days to a week. This is because he was, (in due course) offered a job in [Massachusetts] by his employers ([F Ltd]) for a twelve month period. We agreed to accept event though he knew the marriage was in difficulties. I hoped that a fresh start in a fresh country might assist the marriage. An E3 visa was obtained through work for [the father] but myself and [the child] were only able to obtain E3D visas, i.e. dependant’s visas. Accordingly in May 2009 the matrimonial home was let to tenants as the move was always intended for no longer than twelve months, bank accounts were retained in the United Kingdom and still are; friends and acquaintances were told our trip was for a limited time.
[12] Page [22] of application of SCA filed 19 April 2010.
In cross examination, the mother clarified that she saw the move to Massachusetts as a fresh start to the marriage rather than a fresh start in a new country. The mother admitted that she and the father had either disposed of or shipped all belongings to Massachusetts. They retained the property in London and acquired new furniture so that it could be let fully furnished. The mother accepted that the lease over the property was for 15, not 12, months. She said that she had not seen the lease document until she saw the father’s recent affidavit to which it is annexed. The father did not give any evidence on why the lease was for 15 months, rather than 12 months. I accept the mother’s evidence that she told friends and acquaintances that the family would be returning to London and my impression is that is what she wanted to do. I also accept that the father did not do likewise.
In the mother’s affidavit sworn 11 June 2010, she referred to the family’s stay in Massachusetts being for an indefinite period. In her affidavit, the mother describes the family’s return from a trip to South Africa to see her family and attend her sister’s wedding and goes on to depose:-
12.Upon my return to London in October 2008, the Father and I agreed that I would return to work in the New Year. It had always been our shared intention that I would return to work at around this time. I made enquiries and was told that there was a possible role available to me at my previous employer. I was excited by this prospect of returning to work in a company that I was familiar with and that I knew supported a work-life balance for employees with parental responsibilities. However, that same day the father told me that he had been offered the opportunity to work temporarily in [Massachusetts]. The Father referred to this opportunity as a ‘secondment’ at the time. I was devastated by this news as it meant either remaining in London by myself with [the child] or travelling to another city where I did not know anyone. However, the Father insisted that he should take up this opportunity. We eventually came to an agreement that [the child] and I would remain in London from January 2009 to April 2009, during which time the Father would travel between London and [Massachusetts], and then [the child] and I would travel to [Massachusetts] in April 2009 until the Father’s secondment finished. We did not know the exact duration of the secondment; however prior to us leaving London, the Father assured me that this would only be a short term position and that we would all return to London once the secondment was completed.
The father’s evidence in cross examination was that it was always his intention to return to Australia to live permanently. He was not able to say that he spelt that out to the mother, much less that she agreed. My impression is that the couple had significant difficulties in their relationship and that the topic of where they would eventually settle was one of the most, if not the most, divisive issue between them. As a consequence they did not discuss it on a day to day basis and both kept their thoughts to themselves hoping that he/she may subsequently be able to change the other’s mind.
The mother’s evidence was that she and the father regarded her trip back to the United Kingdom as a trial separation. The father denies that there was a trial separation. The mother’s lawyer, Ms Usher, stated in an affidavit that:[13]
[the] marriage deteriorated whilst they were in America and the parties agreed on a three month trial separation. The mother was unable to work in the United States (for visa reasons) and the father was not willing to support her. She had no alternative other than to return to London and for the three month period July to October 2009 she worked on temporary contracts in the United Kingdom. She travelled to America every alternate weekend.
The reference to the father not supporting the mother financially was not the subject of any cross examination. Elsewhere, the mother referred to the father as being “unable to support [her] independently in [Massachusetts],” which is probably more accurate and sits comfortably with the father’s evidence.[14]
[13] [5] affidavit of Anne Carolynn Usher sworn 12 April 2010 at page 30 of application of SCA filed 19 April 2010
[14] See [20] of the father’s affidavit sworn 19 February 2010 in the Massachusetts proceedings at page 107 of application of SCA filed 19 April 2010
The father’s evidence was that the mother’s move to London was initially for three months but then became permanent. He admitted in cross examination that the move allowed their relationship “to breathe”. The mother’s affidavits referred to discussions about separation having occurred on conflicting dates. The father denies that the discussions took place at all. Having seen them both in cross examination, my impression is that the mother’s version is more correct than the father’s version. The father might have hoped that they would not separate, or the mother would change her mind and come back to Massachusetts to live, but I am satisfied that the mother left Massachusetts without any intention to return other than to visit the child.
When the mother left for London on 26 July 2009, the child remained in the care of the father. Both parents gave evidence that they considered that a move back to London for the child at that time would be disruptive. The father’s evidence was that the mother had nowhere to stay in London and was “going to sleep on her friend’s couch” for weeks or months. It was agreed that the mother would fly back to Massachusetts to visit the child once a fortnight or so. The mother visited each month but not as frequently as fortnightly.
The mother’s affidavit evidence about the basis upon which she left London without the child is as follows:-
a)In par 8 of her affidavit sworn 12 April 2010 in support of her request to the Central Authority in the United Kingdom, she deposed:
I returned to London (which did in some ways suit me because I regarded that as my home). I had wanted to take [the child] with me but [the father] argued that (a) I would be working and therefore not have time with him, (b) it would be unnecessarily disruptive to [the child] – particularly if at the end of that three month period we were able to reconcile. I did see that sense of that and therefore reluctantly agreed to [the father’s] proposal that I should leave [the child] in the care of his nanny – from 7.30 am to 6.00 pm Monday to Friday and I would try to fly over alternate weekends and telephoned at least twice a day. These telephone calls were used for information about [the child], to talk to [the child] and on occasions to talk about the adult relationship.[15]
b)In par 19 of her affidavit affirmed on 11 June 2010, the mother deposed that:
At this time I told the Father that I wanted to take [the child] with me to London during our trial separation. The Father refused to consider this, telling me that it would be irresponsible to take [the child] out of a stable environment and return to London where I had no accommodation or childcare arranged and in circumstances where I might then relocate back to [Massachusetts] if we reconciled. The Father said that this upheaval would not be putting [the child’s] best interests first and he refused to consent to me taking [the child] to London. Eventually I reluctantly gave in and agreed to allow [the child] to stay in [Massachusetts] during the trial separation; however I expressly told the Father that I wanted to take [the child] to London with me if we decided that reconciliation was not possible and we separated permanently.
[15] Page 23 of application of SCA filed 19 April 2010
Under cross examination, the mother’s evidence was that she had reached agreement with the father, prior to her leaving Massachusetts, that if the couple decided to reconcile the marriage after three months, the father and the child would re-locate to London and, absent any reconciliation, the father would send the child over to London at the expiration of three months. This evidence was significantly different to her affidavit evidence. It included reference to an agreement or meeting of minds whereas the affidavit evidence was to the effect that she reluctantly agreed to the father’s requirement that the child remain in the USA albeit, on one version, stating that she wanted the child in London if the marriage was not reconciled. It included the child relocating to London whether the marriage was reconciled or not and a specific time frame within which the relocation would occur. In further cross examination, she conceded that there was no express agreement but that the father knew that is what she wanted and expected and assumed would happen. I accept that parties can genuinely and honestly have divergent recollections of the same events. However, the mother’s evidence, to the effect that the child would follow her in three months time, was wishful thinking rather than reflective of what occurred. I do not accept the father’s evidence to the effect that the mother “did not want to take [the child] with her”. However, I do accept that for the first three months at least, there was no agreement or shred of intention that the child would live elsewhere than in Massachusetts.
The mother deposes[16] that the first notice she had of the father’s intention to remove the child from the USA to Australia was when the father told her on the weekend of 22 February 2010. Her evidence is:-
[16] Mother’s affidavit sworn 12 April 2010 [12], page [24] of application of SCA filed 19 April 2010
12.When I first arrived in [Massachusetts], [the father] simply refused to discuss the situation with me and it took several days before he was willing to do so. Eventually during a very long discussion over the weekend of 22/23 January [the father] told me (for the first time) that he wanted [the child] to remain with him in Australia permanently. It is wholly untrue to suggest (as [the father] has done in the Australian proceedings) that it was ever agreed that we would make our home permanently in Australia that was his wish but I was opposed to it. That weekend was spent in very heated argument. During the course of that weekend I said that I was going to take [the child] back to London. [The father] told me that he had taken legal advice on the law of Massachusetts and no resident child was allowed to be taken out of the state, let alone the country without the resident parent agreeing to this. He took the view that he was the resident parent and made it clear to me that if I attempted to remove [the child] I would be stopped by the police, the child would be forcibly taken away from me and I was likely to be imprisoned. I now know that this may not be true but he frightened me.
13.At the end of that dreadful weekend I needed to fly back to London. My flight was booked for late Sunday 24 January. About ten minutes before I was due to leave for the airport [the father] said to me “you should know that I have handed in my notice at work and this flat. [The child] and I will be leaving for Australia on 2 March”. I was completely stunned and simply did not know what to do – being very mindful of the threat that I would be arrested and imprisoned if I tried to remove [the child].
14.When I returned to England and switched on my computer the following 25 January there was a letter from [the father’s] Australian solicitors serving me with court papers which had been issued after he left Australia but in which he sought he custody of [the child]. Copies of those documents are exhibited to my English solicitor’s affidavit.
15.As soon as I received those papers I realised that no amount of discussion or negotiation with regard to [the child’s] future would be possible. This was just [the father] continuing with his controlling agenda and wholly disregarding my wishes. I was terrified for my child. I therefore felt I had no alternative but to fight by any legal means available to me. I instructed solicitors in Australia who advised me that, in their view, the Australian court did not have jurisdiction to hear a custody case involving [the child] who had never been habitually resident in Australia. Those solicitors (Ian Kennedy and Co) invited [the father] to withdraw his Australian proceedings but they are still ongoing and have been adjourned until 4 may 2010.
16.I took the advice from London lawyers (Henry Bookman Associates) who issued a divorce petition. This was served upon my husband and I know that he received them because he several times referred to them in telephone conversations with me and in the American proceedings. Copies of those documents are exhibited to the affidavit of Anne Carolyn Usher. Copies of those proceedings are also exhibited to my current English Lawyers affidavit.
17.I immediately instructed lawyers in [Massachusetts] to seek an order preventing the removal of [the child] from [Massachusetts] and an Order giving me custody. Copies of the whole proceedings are exhibited to Carolyn Usher’s affidavit. As will be seen from the papers although my American attorney was able to get an expedited hearing when the matter came before the Court on 22 February [the father’s] lawyers were able, successfully, to argue that the [Massachusetts] Court did not have jurisdiction and should not exercise it. I did attend court and it was apparent that the American judge took the view that [the child] was not habitually resident in Massachusetts or indeed in America. I was of course devastated by the result. I asked my lawyers if there was any possibility of an appeal but was advised that that was unlikely to succeed. I am endeavouring to obtain a copy of the tape of that trial.
18.At that time I simply did not know what to do. [The father’s] visa and his right to stay was dependent upon his job and once his job had finished he had only ten days to leave the country. My own right to be in America similarly fell with his visa. I considered taking [the child] back to England with me but in view of [the father’s] earlier threats I truly believed that to do so would be a criminal offence and was likely to result in the immediate removal of [the child] from my care by the police with the awful prospect that I may not see him again. I therefore came back to England (feeling I had no alternative) on or around 27 February determined that I would fight for [the child] through legal channels. As soon as I got back I contacted everyone I could think of and eventually was referred to [a community organisation]. They in turn put me in contact with my present lawyers.
19.On or about 12 March 2010 they forwarded me a formal application under the Hague Convention to the UK Central Authority seeking the return of [the child] to this country.
The father was required to file evidence in response to the mother’s evidence by 7 May 2010. He swore an affidavit on 6 May 2010 but did not respond specifically to the matters deposed to by the mother. Even so, his account does not materially contradict the mother’s account. It is as follows:-
86.[The mother] visited [Massachusetts] on 20 January. She stayed at the apartment as was customary.
87.We went for dinner and had a discussion on 22 January 2010. The discussion involved the assessment of the advantages and disadvantages of living in America, England or Australia. There was to be no decisions to be made but rather we would sleep on the discussion. [The mother’s] position was clear that she would not consider Australia or the United States as an alternative.
88.On 23 January 2010 we went for a walk in the local park at which point [the mother] said that I was not happy moving back to England to raise [the child], that there were better opportunities to be had in Melbourne with a family support network. And that I intended to return to Australia with [the child]. I reminded [the mother] that it was always our intention to raise [the child] in Australia. [The mother] was not pleased and intimated that she had sought legal advice in relation to custody of [the child]. At no time did I mention that [the child] could not be removed from the Commonwealth of Massachusetts and that she couldn’t remove him without my permission. I left [the mother] to call her parents. [The mother] returned to the apartment. At no time did she request [the child’s] Passport or attempt to pack his bags.
89.On 24 January 2010 as [the mother] was leaving she asked whether I had a date in mind as to when I wanted to return to Australia. I said early March 2010. [The mother] was upset. Later in the day after considering my position, I contacted my lawyers in Melbourne and requested they commence proceedings in the Federal Magistrate’s Court of Australia as I intended to return home with [the child] in early March.
90.On 25 January 2010, the application was filed and served by email on [the mother]. I also signed an agreement with a moving company to transport my household goods back to Australia.
91.On 27 January 2010 I bought a plane ticket for [the child] and me to return to Australia on 2 March 2010.
92.On 12 February 2010, the Friday of the long weekend, I was served with a custody petition to be heard in the Commonwealth of Massachusetts Family Court, seeking [the mother] be granted custody of [the child] and that he be refrained from leaving the Commonwealth of Massachusetts. The hearing was set for 22 February 2010.
93.On 22 February 2010, the judge dismissed [the mother’s] petition. On the grounds that I was the primary caretaker and that I had made a decision to return to Australia. The arguments put forward by me in relation to jurisdiction were in relation to custody and they were not intended to be in relation to arguing [the child’s] habitual place of residence as determined by Hague Convention.
94.On 22 February 2010 after the hearing, [the mother] returned to the apartment and despite legal advice to the contrary I allowed her to stay at my apartment for her remaining time in [Massachusetts], some five days. The arrangement was amicable. There would have been nothing to have prevented [the mother] from taking our [the child] and leaving the country whilst I was at work.
The father’s parenting application in this court, under Australian domestic law, was filed on 25 January 2010 and is supported by an affidavit sworn on 11 January 2010 in Massachusetts, USA. The father deposes that the mother had told him, and he accepted, that the mother would stay in London. He says that he intended to take the child to Melbourne to live and, to that end, will “leave my current position”, go to live with his parents in Melbourne and seek employment in Australia. The affidavit was prepared a week and a half prior to the mother’s visit to Massachusetts on 22 January 2010 but no mention is made in the above extracts of the father having given instructions to pursue legal proceedings in Australia well prior to 24 January 2010. In cross examination, the father admitted that as early as October 2009, when the mother said she would not return to Australia, he started to consider the option of taking the child to Australia, necessarily, contrary to the mother’s wishes. He was constantly in contact with his parents and spoke about the possibility with them including telling them in November that he wanted to move to Australia. In December 2009 he spoke to his solicitor in Melbourne, Mr Geoff Croxford, on two or three occasions and they exchanged four or five emails. In his affidavit, the father referred to having seen a family friend (Mr Croxford) in Australia in January 2010. However, under cross examination there was no suggestion by the father that the electronic communications in December 2009 were about anything other than his proposal to move to Australia.
I am satisfied that the father’s plan to move to Australia was at an advanced stage prior to him and the child leaving Massachusetts to spend Christmas in Australia and all of this was utterly unknown to the mother. The fact that he did not mention anything of this nature to the mother when she lived with him and the child between 19 to 24 December 2009 is cogent evidence that he did not want the mother to know his intentions. The corollary is that there was certainly no meeting of minds or shared intention that the child would be removed to Australia.
On 9 February 2010 the mother initiated proceedings in Massachusetts by filing an ex parte motion to enjoin the removal of the child from the Commonwealth of Massachusetts and for the temporary order for custody of him.[17] She claimed that service of the proceedings on the father would result in him leaving the USA with the child. The mother contended that the petition was within the jurisdiction of the Massachusetts courts to grant as the child “is a resident of the Commonwealth [of Massachusetts]”. On 19 February 2010 the father filed a motion to dismiss the mother’s petition[18]. He contended that whilst the court had jurisdiction because the child had resided in Massachusetts for the preceding ten months, the court should refuse to exercise jurisdiction. The father submitted [19] that:
over the past month and a half the Father has made the necessary arrangements to move back to Australia with [the child] and reside with his family” and had instituted parenting proceedings in Australia. The father submitted that there were technical impediments to the court exercising jurisdictions during the pendency of proceedings in Australia and the United Kingdom.
[17] Application of SCA filed 19 April 2010 pages 87 to 88
[18] Application of SCA filed 19 April 2010 pages 96 to 104
[19] Application of SCA filed 19 April 2010 pages 97
Further and in the alternative, it was submitted by the father that[20]:-
In this case, Massachusetts is an extremely inconvenient forum for the parties. Neither the Mother, the Father, nor [the child] is a citizen of the United States, and after March 8 2010, none of them will be able to live in the country legally. The Mother has only resided in this country for a total of four months, and the Father and [the child] have resided here for less than eleven months. Both parties have indicted their plans to reside in other countries, the Father in Australia and the Mother in England. Neither party has any family located in Massachusetts, let alone the United States. Father’s entire extended family is located in Australia, including his mother, father, brother and numerous aunts, uncles and cousins. [The child] is only twenty one months old, and has no connection to the current community. [The child] is not school age and while the Father is working he is cared for by a nanny. Prior to the Mother filing this action, the Father had already made arrangements to relocate to Australia with the Child. These arrangements included terminating his employment, lease and nanny, purchasing plane tickets, securing a moving company, purchasing medical insurance in Australia, and arranging living quarters and planning for the Child’s future care. Additionally, Father even filed the appropriate proceedings in the Federal Magistrates Court in Australia seeking custody of [the child].
Based upon these factors, Massachusetts is not the appropriate forum for this litigation. This Court should find that its assumption of jurisdiction would constitute and inconvenient forum and that the courts of Australia or England would both constitute more convenient forms. Accordingly, this Court should decline to exercise jurisdiction in this matter.
[20] Memorandum of Law in Support of Respondent’s Motion to Dismiss Petitioner’s Verified Petition for Custody Pursuant to G.L.c.209B, pages 101 and 102 of Application of SCA filed 19 April 2010
The mother’s position before the court on Massachusetts was stated to be:[21]
We’re not looking to this court to take jurisdiction permanently over this case, it makes no sense whatsoever. What we are looking for is to this court to take temporary jurisdiction to enjoin this boy from going to Australia, at least until such time as the court in London and the court in Melbourne, Australia, have an opportunity to consult and under the Hague Convention and frankly, under the UCCGA, decide what is the appropriate place for jurisdiction over this custody dispute.
And:-
If this court were to say, “You know what? This really is not the appropriate jurisdiction for this case – I’m going to dismiss this case”, that rewards the husband and father for getting to the courthouse first. He wins because he got down to Australia before mom got into a court in London. That – it’s essentially what would happen. There would be no default in favour of the husband because as soon - and, by the way, not only does he have plans to leave, but the solicitor in London has a letter from his solicitor in Australia saying, “If your client’s” – that’s my client – “application to compel the return of [the child] to London is unsuccessful, our client intends to then immediately relocate with [the child] to Australia.”
And:-
I’m not asking for a long period of injunction here, I’m asking for a very short period of injunction – no more than 30 days – to allow solicitors to go into the courts in London and with the emergency powers that the English courts have, have a consultation so that these courts can decide what tis the best place to adjudicate this matter – otherwise Your Honour will have, in effect, made the decision in favour of the Australian court because by declining jurisdiction today you will effectively allow [the father] to get on a plane next week, with his son, and go to Australia and the case is essentially over as far as what court is the appropriate court for this case to be heard.
That’s all I’m asking. That’s the only reason we are here today and that’s the only thing that I’m asking for.
[21] Unnofficial transcript of proceedings, page 1, annexure “NCW8” to affidavit of the father sworn 1 July 2010
The father relied upon the fact that he had no employment and would not be permitted to remain in the USA even for the 30 days for which the mother sought the injunction that, in effect, the child not be removed to Australia. It is clear that the father orchestrated the situation whereby he was not permitted to remain in the USA and used that opportunity to bring the child to Australia contrary to the mother’s express intentions. The threat of deportation for the father and the child was, as the mother’s attorney submitted to Judge Smoot, in Masachusetts, “a complete bootstrap” and an element of a covert arrangement of the father to achieve his purpose.
On 30 April 2010 the parties requested that I make a request, via the International Hague Network of Judges, for a copy of the reasons for decision of the presiding Massachusetts judge. The response from the Network judge in Florida was prompt but nothing came of her request to the relevant court in Massachusetts. Insofar as it may be discerned from a transcript of proceedings (to which the SCA did not object), Judge Smoot considered that the father, as primary care giver for the child for the preceding eight months, was entitled to decide where the child should live in the short term and, for that purpose, to take him to Australia with the consequence that Australia would likely become the forum for determination of parenting issues concerning the child.
I am satisfied that the mother thought that she was constrained from taking the child from the USA following the proceedings in Massachsetts. My impression is that there was no resignation or acquiescence on her part. I accept that she felt bewildered about the result in the proceedings in the USA and that she sought advice on an appeal.
On 12 February 2010 the mother filed a petition in the Principal Registry of the Family Division of the High Court of Justice for a dissolution of marriage[22] on the basis of an irretrievable breakdown of marriage. Relevantly, the mother provided particulars of the behaviour that the mother could not be expected to tolerate as including that, after July 2009, the “parties agreed that their son, [Z] would return to England to reside with the [mother] but that the [father] increasingly dragged out the arrangements that he has agreed with the [mother] for returning [the child].” That application has yet to be determined. The mother’s evidence is that the father has not opposed the application and it will be dealt with in due course. The mother also said that she expected that the return to her of such of her belongings as are still stored by in her parents-in-law’s house will be returned to her then.
[22] Application of SCA filed 19 April 2010 pages 58 to 62
Habitual residence
Habitual residence is a matter of fact in every case. There is extensive case law resting with a recent decision of the High Court of Australia in LK and Director-General, Department of Community Services[23], from which various principles emerge and which provide the perspective from which facts are assessed so that a decision can be made in relation to habitual residence.
[23] [2009] HCA 9 (11 March 2009).
There is the much quoted speech of Lord Scarman in R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309, in relation to “ordinarily resident” which has subsequently been embraced in countless authorities as applicable to habitual residence. Lord Scarman said at [342]:-
I agree with Lord Denning MR that in their natural and ordinary meaning the words [which in that case were "ordinarily resident"] mean "that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration." The significance of the adverb "habitually" is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes.
And later at [343]:
[…]I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.'
In De Lewinski v Department of Community Services (1997) FLC 92-737 the Full Court of the Family Court, comprising Nicholson CJ, Ellis and Warnick JJ, approved of the earlier analysis of habitual residence by a differently constituted Full Court in the matter of Cooper and Casey[24] in the following terms:-
No challenge was made to the correctness of the decision in Cooper v. Casey (supra). In that case, Nicholson CJ. (with whom Kay and Graham JJ. concurred) referred, with approval, to the following summary of the principles set out by Waite J. in Re B (Minors) (Abduction) (No. 2) (1993) 1 FLR 993 at 995:-
“1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.
2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or 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 of long duration.
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.
3. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention. The House of Lords in Re J, sub nom C v S (above) refrained, no doubt advisedly, from giving any indication as to what an ‘appreciable period’ would be. Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F (above) the Court of Appeal approved a judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.”
[24] (1995) FLC 92-575
In the recent case of LK and Director-General, Department of Community Services[25] 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.
[25] [2009] HCA 9 (11 March 2009).
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.[26]
[26] [32-34] (emphasis in original).
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.
The respondent husband contends that, as at 2 March 2010, the child was habitually resident in the USA and, therefore, any application based on the child being habitually resident in the United Kingdom must fail. The father relies on the fact that the child had lived in the USA for the preceding ten months or so. Counsel for the SCA submitted that it is disingenuous of the father to contend thus given that his successful application to the court in Massachusetts was that it could not, or should not, exercise jurisdiction. That is, the father is now saying that the child was habitually resident in a place to which to which he cannot be returned with a court which the father persuaded not exercise jurisdiction over the child when it had the opportunity to do so. The criticism by the SCA is perfectly valid on the facts of this case. Whether it means that the child was habitually resident in the United Kingdom at the relevant time is another issue.
Applying the above principles to this case, I am not satisfied that the child was habitually resident in the United Kingdom as at 2 March 2010. I am satisfied that when the mother and the child left London, they completed the move of the family to a new place of abode, Massachusetts. There was no clear intention and no agreement about where the family would go to after the father’s contract in Massachusetts concluded. My impression is that the lack of resolution was referrable to the long standing difference between the parties about residing in Australia. However, the United Kingdom did not remain a place of habitual residence by default.
In coming to my conclusion, I have regard to the facts which preceded and succeeded the family’s move from London to Massachusetts. When tested, the mother’s evidence was that she assumed that the father shared her intention to return to London. Further, that she told him that she required the child move to the United Kingdom after three months. Likewise, the father’s evidence was that it was always his intention that they would eventually live in Australia but, when pressed, he was not able to say that the mother agreed to do so. My impression is that there was no common intention and nor did one party lull the other into any false belief, rather each parent carefully avoided confronting the expectation of the other.
The fundamental concept of the 1980 Convention is that the most appropriate forum for the determination of parenting arrangements for a child is the place of his habitual residence immediately prior to the wrongful removal or retention. Oftentimes implementation of the Convention coincides with fairness as between parents but sometimes it does not. It is a convention designed to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence”, it is not about equitable principles or parental rights. It is with some justification that the mother may feel that she was tricked or manipulated and she may well regret not having identified the actions that the father was taking to defeat her interests. In the result, however, I find that this is one of the rare cases in which the provisions of the Regulations are not engaged notwithstanding a unilateral removal.
Rights of custody
It is contended by the father that the decision of the court in Massachusetts legitimised his removal of the child to Australia. As I have found that the child was not habitually resident in the United Kingdom, this is not a matter which I need to consider. If it did fall for consideration, it should have required some evidence of rights of custody pursuant to the applicable laws of the USA.
Conclusion
As the child was not habitually resident in the United Kingdom as at 2 March 2010 the application must fail.
I will dismiss the application. I will discharge the orders which secured the whereabouts of the child pending determination of this proceeding. That means that the watch list order will be discharged and both the mother and the father can remove the child from Australia. The father is at liberty to collect the child’s passport from the court.
The 1980 Convention is a mechanism for determining forum following a unilateral removal of a child across international borders. Even though this application is dismissed, the parenting dispute is still very much alive and in need of resolution. There are currently proceedings in this court which are in abeyance. I will direct that they be referred to a Registrar of the Court to be fixed for interim hearing in this court after some consultation with the practitioners for the parties as to suitable dates and the manner in which the mother wishes to participate in the hearing given the different time zones.
I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 16 July 2010
- AGLC
- State Central Authority and Weston [2010] FamCA 599
- Case
- [2010] FamCA 599
- Decision Date
CaseChat Overview and Summary
The central legal issues before Bennett J were whether the State Central Authority's application for orders relating to the child's passport and international travel should be granted, and how Mr Weston's application should proceed. The court was required to determine the appropriate course of action regarding the child's passport and any existing travel restrictions.
Bennett J dismissed the application by the State Central Authority. The court ordered that the child Z's passport, held by the Registry, be returned to the father, Mr Weston. Furthermore, certain paragraphs of a previous order made on 23 April 2010 were discharged. Mr Weston's application filed on 25 January 2010 was referred to Registrar Mestrovic for an interim hearing. The court also requested that the Australian Federal Police remove the child's name from the Airport Watch List for all international arrivals and departures in Australia.
Orders
Orders of the court
IT IS ORDERED:
1.
That the application of the State Central Authority filed on 19 April 2010 be and is hereby dismissed.
2.
That the passport of the child Z born … April 2008 currently held for safekeeping in this Registry of the Court be returned to the father Mr Weston.
3.
That paragraphs 3, 4, 5, 6 of the Order made on 23 April 2010 be and are hereby discharged.
4.
That the father’s application filed 25 January 2010 be referred to Registrar Mestrovic for fixing for interim hearing in the appropriate list.
5.
IT IS REQUESTED that the Australia Federal Police remove the name of the child Z born … April 2008 from the Airport Watch List at all points of international arrivals and departures in Australia
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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