State Central Authority & Brume (No 2)

[2010] FamCA 458

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BRUME (NO. 2) [2010] FamCA 458

FAMILY LAW – CHILDREN – Child Abduction – Hague Convention – habitual residence – where prior agreement made in Australia regarding the mother’s child born in Australia from a previous relationship under which the mother would return to Australia – where child in question was born in the Netherlands subsequent to agreement made by the mother in Australia – where proceedings filed in Australia by father of mother’s child from previous relationship – where mother is primary caregiver of both children

FAMILY LAW – CHILDREN – Child Abduction – Hague Convention – exceptional circumstances justifying appointment of an independent children’s lawyer

Family Law Act 1975 (Cth) s 68L
Family Law (Child Abduction Convention) Regulations 1986 (Cth) r 16, r 26

LK and Director-General, Department of Community Services (2009) 237 CLR 582.
Re D (Abduction: Rights of Custody) [2006] UKHL 51.
Re: H & Ors (1996) 1 All ER 1 at 16.
R v Kelly (Edward) [2000] QB 198.

APPLICANT: State Central Authority

RESPONDENT: Ms Brume

INDEPENDENT CHILDREN’S LAWYER: Mr T Finn

FILE NUMBER: MLC 434 of 2010

DATE DELIVERED: 31 May 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17, 18 and 19 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A Barbayannis

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

COUNSEL FOR THE RESPONDENT: Mr R Weil

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr R Hoult

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marshalls & Dent

Orders

IT IS ORDERED:

1. That the court being satisfied that the retention in Australia by the mother of the child N born … March 2008 is wrongful within the meaning of Regulation 16(1A) the of Family Law (Child Abduction Convention) Regulations 1986, the balance of the proceedings, including consideration of the application of any exceptions to mandatory return pursuant to Regulation 16(3), be adjourned sine die to follow the determination of parenting proceedings concerning the child J Fowler born … April 2001 (MLC 3908 of 2010) or further order of the court.

2. That for the avoidance of doubt:-

   (a)paragraphs 2 to 5 inclusive of the Order made on 18 January 2010 (to secure the whereabouts of N born … March 2008), and

   (b)paragraph 3 of the Order made on 17 March 2010 (requesting the appointment of the independent children’s lawyer) -

   continue in full force and effect until further order.

AND IT IS DIRECTED that a copy of this Order and reasons for judgment be sent to each of the parties in the matter of Fowler & Brume, and to the Manager, Child Dispute Services of this Registry.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 434 of 2010

STATE CENTRAL AUTHORITY 

Applicant

And

MS BRUME

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. By application filed 18 January 2010 the State Central Authority seeks the return to the Netherlands of the child N born in March 2008 pursuant to r 16 of the Family Law (Child Abduction Convention) Regulations 1986 (‘the Regulations’). The Regulations import into Australian law the provisions of the Convention on the Civil Aspects of International Child Abduction, which was concluded at The Hague on 25 October 1980 (‘the 1980 Convention’).

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

3. The applicant in these proceedings is the State Central Authority (SCA).  Mr C is N’s father who lives in the Netherlands and at whose behest the application is made.  The respondent, Ms Brum, is the mother of N.

4. The Regulations apply to N only if she was habitually resident in the Netherlands at the relevant date. If she was not, the whole application fails. If N was habitually resident the court will go on to consider at a later hearing other aspects of the matter including whether certain exceptions to mandatory return apply and, if so, whether the court should exercise its discretion to not return N to the Netherlands. For reasons which I will elaborate upon later, this decision relates to the threshold issue of whether N was habitually resident in the Netherlands.

5. The SCA alleges that Mr C (“the father”) agreed to the mother taking N from the Netherlands to Australia in March 2009 for a period of six months.  In August 2009 the father agreed to N remaining in Australia until 15 September 2009.  In September 2009 the father signed a consent for N to obtain a further visa.  Subsequently a further visa was obtained to enable N to remain in Australia until 27 December 2009.  However, on 23 November 2009 the mother sent an email to the father advising him that she would not return N to the Netherlands at all.  On 3 December 2009 the father made the appropriate request to the Ministry of Justice in the Netherlands, which is that country’s Convention enforcement entity.  The Ministry of Justice forwarded the application to the Australian Central Authority which is our Convention enforcement entity.

6. The SCA alleges that since 27 December 2009 the mother has wrongfully retained N in Australia and seeks N’s return to the Netherlands.

7. The mother filed an answer and cross application on 1 March 2010 in which she seeks that the application of the State Central Authority be dismissed.  The mother resists the return of N to the Netherlands and she contends that:-

   ·N was not habitually resident in the Netherlands immediately prior to 27 December 2009 and, therefore, the retention is not wrongful within the meaning of the Regulations and the Regulations do not apply to her.

   ·If contrary to the mother’s contention, the retention is found to be wrongful, then by email sent on 21 July 2009 the father consented or acquiesced to N remaining in Australia. Amongst other things, the father wrote “[…] I don’t want you to come back.  It is better for you, and in the end also for me, that you will stay in Australia.  And although it hurts me a lot, I will not call back [N], if only for the fact that she doesn’t know me anymore and will go through enough.”[1]

   ·If contrary to the mother’s contention, N is found to have been habitually resident in the Netherlands at the relevant time, there is a grave risk that the return of N would expose the child to psychological harm or otherwise place her in an intolerable situation within the meaning of r 16(3)(b) by virtue of her being separated from the mother and/or her sister, J, who is the child of the mother’s earlier relationship with Mr Fowler.

   ·If contrary to the mother’s contention, the retention is found to be wrongful, then the return of N to the Netherlands would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms within the meaning of r 16(3)(d);

   [1] Annexure “SEB 8” to the mother’s affidavit sworn 1 March 2010

8. As indicated, this hearing is concerned only with the first issue described above, namely habitual residence.  Subject to further order of the Court, the other issues described above will be determined only if necessary upon the completion of other proceedings in this court involving N’s sister, J.

Evidence and the conduct of the proceedings

1. The SCA  relied on the following documents:

   ·Form 2 application for commencement of proceedings under the Regulations, which includes a statement by the father and authorisation for the SCA to act on the father’s behalf, dated and filed 18 January 2010.

   ·Affidavit of Teresa Porritt, solicitor for the SCA, sworn 19 March 2010, attaching material from the father in response to the mother’s evidence.

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

   ·Form 2A answer and cross application filed 1 March 2009.

   ·Her affidavit affirmed 1 March 2010.

3. Pursuant to r 26 a report dated 14 May 2010 was prepared by Ms W, family consultant. However, it was agreed not to be relevant to the issue of habitual residence.

4. The father elected to travel to Australia to be interviewed for the r 26 report and to attend this part of the hearing. The father and the mother were each cross examined before me. I found the opportunity to see them in the witness box to be very valuable in my assessment of their evidence.

5. The father gave his evidence in English. I was not aware of any language difficulties.  His manner was thoughtful and serious.  I found the father to be a straightforward witness.  I am satisfied that he told the truth.

6. I found the mother to be a more complex witness.  For reasons which I discuss below in relation to specific parts of her evidence, I found her to be a less reliable witness than the father.

The appointment of the ICL

1. On 17 March 2010 the court made orders requesting the appointment of an independent children’s lawyer (ICL) pursuant to s 68L of the Family Law Act 1975 (Cth) (‘the Act’). Mr Mark Finn was appointed as the ICL. Mr Hoult, of Counsel, appeared on behalf of the ICL. Section 68L(3) provides that in proceedings under the Regulations a request for appointment of an ICL should be made ‘only if the court considers there are exceptional circumstances that justify [the court] doing so.’ The court is also required to specify the circumstances relied upon.

2. No party opposed the appointment of the ICL.  Given the time constraints imposed on wrongful retention/removal matters under the 1980 Convention, if an ICL is to be appointed they must be appointed at the earliest possible opportunity.  Indeed, to fail to address at the outset of proceedings the need for an ICL is to invite delay in the final determination of the matter.[2] 

   [2] As Baroness Hale of Richmond observed in Re D (Abduction: Rights of Custody) [2006] UKHL 51, proceedings are not prolonged by the appointment of a representative for the children’s interests but by one party raising the need or desirability of such representation very late in the day, as a ‘last ditch stand’ and, thereby, requiring a postponement of the trial.

3. It was clear from an early stage in this proceeding that the mother was raising certain exceptions to return as justiciable issues within the meaning of r 16(3). Even more critically, that she was contending that she was torn between her responsibilities as the primary carer of her two daughters whose fathers resided in different countries.

4. In R v Kelly (Edward) [2000] QB 198, Lord Bingham of Cornhill CJ considered ‘exceptional circumstances’ in the context of imposing a life sentence for intentional wounding. His Lordship delivered the judgment of the court and stated at page 208:

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

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

6. I am satisfied that the exceptional circumstances of this case include that the mother is the primary carer of two girls whose needs, vis a vis having a meaningful relationship with their respective fathers, are potentially in conflict and irreconcilable.  It would not have been appropriate for the matter to proceed without N’s interests being represented by someone independent of the mother and the applicant SCA.  I am satisfied that this case is out of the usual course of cases.

7. The role of the ICL is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what they believe to be the children’s best interests.[3]  The ICL is not a legal representative retained by the children and cannot be bound by instructions from the children or either of them.[4]  The ICL is required to deal impartially with the parties.  The legislation requires the ICL to put any views expressed by the children before the court, analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The ICL is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings[5] and to facilitate an agreed resolution of matters in issue to the extent that it is in the best interests of the children to do so.[6]

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

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

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

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

8. The role of the ICL in relation to this part of the proceeding is necessarily more restricted than it will be if the court proceeds to consider exceptions to mandatory return and the exercise of the discretion not to return in which the best interests of N are directly relevant.

9. In relation to the issue of habitual residence, it is the ICL’s role to streamline proceedings, encourage alternative dispute resolution to an appropriate (but not exhausting) degree and to assist in a principled disposition of the matter, be that by testing of evidence in cross examination or making concise and clear submissions.

10. I am satisfied that N has been well served by the ICL and by counsel for the ICL, Mr Hoult.

11. The ICL supported the applicant’s case in relation to habitual residence. Counsel for the ICL cross examined relevantly and made clear and succinct submissions on applicable law and the evidence. His overall view on habitual residence was consistent with the outcome envisaged by the family consultant in the r 26 report to the effect that the best outcome for N would be to return forthwith to the Netherlands in the company of the mother and J.

Litigation history

1. The application of the SCA was filed on 18 January 2010.  It was listed first before Brown J, ex parte, on 18 January 2010 when her Honour made orders securing the whereabouts of N, directed that the mother be duly served and adjourned the further hearing to 1 February 2010.

2. On 1 February 2010, Brown J ordered the mother to file a response and affidavit evidence and adjourned the matter before me on 17 March 2009.  A solicitor attended before her Honour purporting to act for Mr Fowler but had no standing nor made any application.

3. On 17 March 2010, I requested the appointment of an independent children’s lawyer for N, extended the time in which documents could be filed and listed the matter for final hearing in the rolling list commencing 17 May 2010. I also accepted a request by the parties to communicate with the judicial officers in the Netherlands who are members of the International Hague Network of Judges to enquire about the support available to the father in the Netherlands for any mediation, through the judicial system or otherwise.  There was a prompt reply from Liaisonrechter Internationale Kindebescherming to confirm that video conferencing facilities would be readily available for use in a mediation.  Ultimately this facility was not taken up as the parties decided to mediate through legal aid.

4. The matter came before Brown J on 7 April 2010.  There were appearances by the SCA, ICL and the mother.  With leave, Mr. North SC appeared on behalf of Mr Fowler, having advised that proceedings were to be filed in respect of J that morning.  Mr. North readily conceded that there were outstanding and complex questions as to his client's standing in the Hague proceedings and that he was not in a position to make any submissions in that regard on that day.  He was content for the order to note that any application by Mr. Fowler to intervene in, or be joined as a party to, the Hague proceedings would be filed by 15 April 2010.

5. Mr North advised that Mr. Fowler sought that he and the mother have equal shared parental responsibility for J, that J live with the mother and spend time with him as agreed, and failing agreement, on Tuesday and Thursday evenings in each week and alternate Saturdays between 10:00 am. and 5:00 pm.  The application to be filed sought interim orders consistent with those final orders, plus orders restraining J’s removal from Australia, for her passport to be delivered to the court and the appointment of an ICL.  Neither the SCA nor the independent children’s lawyer had any prior notice of the orders sought by Mr. Fowler; there had been some discussion about them with the mother’s representative or her client.

6. Brown J made orders for the appointment of an ICL to represent J in the proceedings to be filed by Mr Fowler, for the mediation scheduled for 13 April 2010 to be privileged and for all times to be abridged to enable proceedings filed that day naming Mr Fowler as the applicant and the mother as respondent to be listed before me on 16 April 2010.

7. A mediation was held on 13 April, 2010.  The mediation was facilitated by Victoria Legal Aid and the participants were the mother and her legal representative, the ICL and the SCA in Australia and the father by telephone in the Netherlands.  Brown J declined to make an order entitling Mr Fowler to participate in the mediation.  However, there was no order preventing the mother or her lawyer from speaking to him or his lawyers in the course of the mediation.

8. The matter did not settle at mediation, and accordingly proceeded to a trial before me on 17, 18 and 19 May 2010.

Burden and standard of proof

1. The applicant SCA bears the onus of proving that N was habitually resident in the Netherlands as at 27 December 2010.

2. The standard of proof to be applied is the balance of probabilities. 

3. In Re: H & Ors,[7] a case involving a wardship application, Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings.  His Lordship stated:-

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

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

   [7] (1996) 1 All ER 1 at 16.

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

Relevant facts

1. The background of the matter is largely non-controversial.

2. The mother was born in the Netherlands in 1970. She is 39 years old.  Her family of origin, including her parents, are in Holland.

3. The father was born in the Netherlands in 1960 and is 50 years old.

4. The father and N are all Dutch citizens.  The mother is in Australia on a visa, of which there was no evidence before the court.  N is in Australia on a temporary visa. 

5. The mother has another daughter, J born in April 2001. J’s father is Mr Fowler, aged 62, and a resident of a town in rural Victoria.  He suffered a stroke about 26 years ago and as a consequence has ‘locked in syndrome.’  He is completely paralysed.  He can only communicate by eye movements which, using laser technology, express his responses.

6. The mother and the father met in the Netherlands in mid-2004 when the mother and J were visiting family and friends.  Later that year, the father travelled to rural Victoria to visit the mother.  In mid-2005 the mother and J holidayed with the father in Spain.  The mother and J subsequently returned to rural Victoria and the mother advised J’s father, Mr Fowler, that she wanted to live in Europe with the father and to take J with her.  Initially, Mr Fowler agreed that she could take J but then reneged on that agreement.

7. On 29 December 2005 the mother and Mr Fowler signed an agreement which provided that the mother could take ‘[J] to go and live overseas in Europe-Holland with [the mother] for the next three years and [the mother] will return [J] to Australia for 10 weeks per calendar year for [Mr Fowler] to have reasonable access during the visit.’[8]  The mother sublet a property in rural Victoria of which she was head tenant and she and J arrived in the Netherlands in late December 2005.  The mother left some belongings in the rental property in rural Victoria and, it appears from correspondence from Mr Fowler, some belongings with him.

   [8] Annexure “SEB 5” to the mother’s affidavit sworn 1 March 2010 

8. The father was aware of the agreement between Mr Fowler and the mother from the time of the mother’s return to the Netherlands with J on 29 December 2005.

9. In an opening address, counsel for the applicant SCA stated that the father’s evidence would be that he and the mother agreed between themselves that she would not be bound by the agreement.  The father’s evidence fell short of that proposition.  The father testified that he and the mother’s family considered that she had been placed under duress by Mr Fowler to sign the agreement and should not consider herself bound by the agreement.  His further evidence was that the mother at times acted as though she would abide her agreement with Mr Fowler, while at other times she led the father to believe that she would repudiate the agreement with Mr Fowler or at least not consider herself to be bound by its terms.  Essentially, he never really knew what the mother would do and that, in his estimation, she did not know herself.

10. The mother’s evidence under cross examination by counsel for the SCA was that she felt under pressure to sign the agreement and:

    I did not want to sign it. I was never sure that I was going to comply. In the beginning, I thought that I would just sign it to get out of here [Australia] but, later [in the Netherlands] I realised that I had given my word [to Mr Fowler] and had to stick to it.

11. Having heard each of the parents give evidence and be cross examined by counsel for the opposing party and the ICL, I am satisfied that the agreement was a source of tension between the father and mother.  It follows that there was no meeting of minds that the mother would not be bound by her agreement with Mr Fowler.  To the extent that counsel for the applicant SCA put the father’s case on the footing that the parents never intended for the mother to be bound by or to fulfil the agreement, his statement was not supported by the evidence obtained from the father. In this respect, I am critical of counsel for the SCA. He is counsel for a party who is a model litigant.  The father was the principal source of evidence and he was in court seated behind counsel for the applicant SCA. Counsel for a model litigant must be diligent and scrupulously fair in presentation of his or her case.  Regrettably, those qualities appear to have been lacking here.

12. Once in the Netherlands, the mother abided some of the terms of her agreement with Mr Fowler in relation to bringing J back to Australia to spend time with Mr Fowler.  It appears that the visits were of four weeks duration rather than ten weeks.  The visits occurred in November 2006 and mid-2007.  During the 2007 visit, the mother confirmed that she was pregnant to the father (with N).  There was no visit during 2008.  The terms of the agreement between the mother and Mr Fowler were that J would be returned to Australia by the end of December 2008.  The mother obtained Mr Fowler’s agreement to postpone J’s trip to Australia until after N’s first birthday in March 2009.

13. It is common ground that the relationship between the mother and father had been strained for some time.  The mother says that they were unhappy from about the second trimester of her pregnancy with N.  The father’s evidence did not contradict that proposition. I accept that shortly prior to bringing the girls to Australia in March 2009 the mother and father had been co-existing under the one roof as opposed to living a rich and happy family life.

14. I am also satisfied on the evidence (including having had the benefit of seeing the mother and the father cross examined) that, upon leaving the Netherlands, the mother led the father to believe that she and the girls would be back within six months.  J obtained a temporary leave of absence from her school and was expected to return there at the expiration of six months.  The mother did not deregister herself or the girls as residents the Netherlands.  The mother did not notify any authorities that she or the girls were no longer residing in the Netherlands nor take any other step to disentitle herself to government benefits payable to the carers of eligible dependant children resident in the Netherlands.

15. The mother and the girls arrived in Australia on 14 March 2009 travelling on return airfares which would enable them to remain in Australia for six months. Mr Fowler wrote to the father by email thanking him for allowing the mother and girls to come to Australia for ‘so long.’[9]  The father’s evidence was that he inferred from Mr Fowler’s expression that he knew that J was visiting Australia temporarily rather than returning to reside permanently.  I am satisfied that is a reasonable inference for the father to have drawn and one which I can draw in this proceeding.

    [9] Exhibit “SCA1.”

16. In June 2009 the mother asked Mr Fowler if she could take J back to the Netherlands for a further two years.  By email sent on 4 June 2009, Mr Fowler refused her request.[10]

    [10] Annexure “SEB4” to affidavit of the mother sworn 19 March 2009

17. Later in June 2009 the father visited rural Victoria and stayed for two and a half weeks.  The mother describes this as a happy time.  In the witness box, her evidence was that:

    things went better than I thought although I had lot of reservations inside myself. When he left, I thought yes it was lovely between me and him and [N] but [J] had barely been there. She was either at school or with her own father. When there was a chance for [the father] to spend time with [J], he didn’t demonstrate further commitment.

    The mother does not allege that she told the father that she had any reservations.

18. At this point, visa and air tickets had been re-arranged with the father’s consent to support the mother and children staying until 15 September 2009.  The father’s evidence was that the mother said that she may well return earlier than 15 September 2009 so that J could attend the start of the school year in the Netherlands on 1 September 2009.  Whilst in Australia, the father and mother sought legal advice from a solicitor in nearby Bendigo as to the mother’s rights and obligations vis a vis Mr Fowler.  This did not figure significantly in the evidence.  However, there was no suggestion that the mother indicated to the father that she would be doing anything other than returning with N and J to the Netherlands.

19. On 10 July 2009 the mother wrote an email to the father expressing her excitement and happiness that she had been granted a visa by Australian authorities. I am unaware of the entitlement of the mother or N to reside in Australia. J has dual Australian/Dutch citizenship.  The mother concluded her message by saying that it was a pity that the father was not in rural Victoria to celebrate.

20. On 18 July 2009 (after the father had returned to the Netherlands) the mother wrote to Mr Fowler by email asking, again, if she could take J back to the Netherlands for a further two years.[11]  Both Mr Fowler and the mother were in rural Victoria at the time.  The mother wrote:-

    [11] Annexure to father’s statement annexed to the affidavit of Teresa Porritt sworn 19 March  2010 (no adequate page numbering)

    Hi [D]

    I’m not sure what to write and I haven’t know that’s why I haven’t … but I’ll try.

    I want to ask you again to please give your permission for [J] to live for another two years in Holland.  It is not that I don’t want you to have her close, it is not that I don’t want her to have you close, if it could be I would want everybody to be here so we could get on with life and live happily ever after …

    But fairytales unfortunately don’t exist and I am fully aware and I am up into the core of my hart remorseful – I mean this – that this situation is effecting everyone involved.  But I can’t devide myself into two.

    [n] is only a one year old.  She needs to still get to know her father.  She needs to get that chance.  [J] and you had that chance to bond in the first two – three ½ /4 years of her life and that has been the solid base and foundation ever since.

    She knew she had a father and she FELT she had a father.

    She now still KNOWS she has her own father and she now still FEELS she has her own father.  [N] might learn that she has a father being away for another year and a half at least before he can come over here to live here or at least start part-time.  A father that she can see every so often but she won’t feel that she has her own father. 

    This is not some scheme to con you in.  This is not something like ‘F … you [D]’ – you are the only one who has said that and that is not what I think nor have I ever thought that.

    It is not that people are unwilling, it is that it cann’t be yet.

    Realistically you cann’t look after yourself, you cann’t look after your child.  In some ways (and many ways) you can but not in the day-to-day living.

    [J] needs me in her life to be there, present, at ‘all’ times.

    For her to live here I need to live here because I cann’t see [G] or [B] giving up their single working/carier young-women’s lifestyle’s to become a mum at home to look after their younger sister her in [rural Victoria]! … And [J] doesn’t want to be without me.

    And [J] doesn’t want to be without [N].

    I am their main caregiver and I have been since birth for both of them except for an afternoon with babysitter’s and with [J] with two days daycare and with [N] I have been there every single day until now except for a few hours here or there.

    They need me and they are entitled to their mother looking after them and besides that I have discovered over the years that I am a good mother, a good mother for them.

    They need to remain together at all times (until they’re ‘grown up’).  They are siblings and need to stay together. 

    The three of us need to stay together.

    I cann’t stay here yet and I cann’t leave [J] behind.  I cann’t stay here with [N] because she has to go back to Holland with me because the first two – three years of a child’s life are the most important for bonding and setting the ‘tone’ for the rest of their lives.

    [J] had a loving, caring, nurturing home with both her mammy and daddy there.  Even though the ‘odd’ circumstance of you being a quad and the rest of the world wondering how possibly she could relate to you and you to her – you two have established that bond from early days onwards and I and we have worked hard despite the distance to keep that bond alive and to treasure that and to make it a priority in our lives.  I have never and I say never thought “F … you [D]”, never. 

    [ … ]

    I have been reliable to stick to the contract.

    I didn’t want that stupid bloody contract.

    It has ruined a lot in my life but that is past and I try to get on with what I’ve got, with whom I am ‘today’.

    I didn’t want the contract!!!  but I needed to get away/out of Australia.

    You have given your permission for [J] to come and live with me in NL and in the week that Granny […] sold you must have gotten it so bad in your head and emotions of loosing that that you said ‘F .. you […]’  I’m not letting [J] go with you to NL’ in an email you sent me (also the week that you got stuck between the doorpost and your chair’s armrest …).

    I panicked, (I knew less/very little about not to panick and make too-a-rushed decisions as I do now a few years and lots of experiences later …) – I felt like the rabbit that’s chased to put back into it’s cage …  Chase it and you’ll freak him out, try calmly ‘easy easy catchy monkey’ and it’ll come to you)  So I panicked and came up with this idea of three years;  three yrs was seemingly “overseeable”, it was when I needed to get my RRV renewed.  You debated that you wouldn’t have a bond with [J], I said you know you will as you have with [G] and [B], you said ‘but I saw them in the holidays’ I said ‘ok I’ll come back ten weeks a year to make up for the holidays’ (I didn’t know yet that that was impossible re. strict dutch school absence/holiday laws) so I bent over backwards to get us here every year with talks with the principal, did you know one of the 3 reasons that I lost my job as a coordinator then was because I was tied to this contract?  They didn’t want me to have to leave that long in a year/couldn’t accommodate that and therefore they didn’t renew my contract.)  I haven’t been able to plan much more than a few months at a time to get work because I need to be able and free to go / come back here for you to see [J].

    And I’ve never held that against you because I believe it is your right which it simply is.

    I know it was an extremely tough long last stretch as I couldn’t plan to come last July/August as I didn’t know what life would be like after the second birth & with a baby – I know you have endured that long stretch and it wasn’t nice.  You have given a lot and I am extremly grateful for that – and I believe I have mentioned that before over time.

    I didn’t want the contract but you wanted it on paper.  By that stage I was so focussed, I just wanted to get out of here … On my own in a far and ‘foreign’ country without family, suffering on and of from severe depression, … I was lost …** see below:  continued:** 

    I needed to get back to my roots and yes perhaps that was a selfish act but in the longrun it has actually made me a better person and therefor a better mother for [J] and now also for [N].  I was very very lost.  After three broken relationships wherof the one with you the most impact had on my life in every possible way – the good and the less favourable – having moved about 25 – 30 times in the ten years before our breakup, having had about 30 odd jobs in those years – on the inside I was lost and living in Holland has done me the world of good even though it was really hard at times (as life is for everybody really – we all have to learn our lessons).

    It grounded me, it sustained me back to mental and more physical health.  It taught me about routine, structure and the back up of my own family, even though very small, has made me grow up and even though at the time I pushed [E and Mr C’s] thing to the forfront, on a different plane I needed to get away from Australia.

    [ … ]

    Please let [J] come back to NL for another two years, we will sustain your contact and keep working hard on your relationship together, we will come again for a visit and the time after to stay.  I am not just saying this but God knows how I would like to stay here, right now and right here but I cann’t yet.

    I love it here and you know that – so you don’t have to be afraid that you will loose [J], that I won’t come back with her because I will come back with her and you know that because I have proven to be trustworthy (after my stupid childish acts of the past that were a mere act of escapism at the time, inexcusable but that’s what it was and I’ve change, I’ve changed a lot …).

    The circumstances have changed – there is a new child.  [J] has another sister.

    Please let [J] come back to NL for another two years.

    She will be in the same school, be safe and happy with her friends (that she does miss a lot) back in her life that she also knows to be as home and we will come back.

    [Mr C] has promised me that she he has established a bond, (and) after two years, he will let me go to come and live in Australia with [N] (and [J]) even if he is not quite ready yet because of work commitments or [E’s] life that for him is just as important as [G’s] and [B’s] and [J’s] lives are for you. 

    [ … ]

    The reason for me not comming to your place since you’ve send me your first email is not ‘because I am shitty with you’ as you called it, it is because I’ve been deeply hurt and deeply effected by this.  I will, as you’ve seen and notice, however do what I can to help [J] come to you and your place as you cann’t help it that you cann’t pick/drop her off from school – that’s a different matter. 

    Will you please give your permission for [J] to live overseas for another two year?

    [the mother]

21. Two days later Mr Fowler responded by email, dated 20 July 2009, in the following terms:-

    Of course I’m going to say yet to [J] going to Holland for another two year, but I want you to understand what a huge thing this is.  You initially said three years and no more because you knew that was a loooong time for [J] and me, and you knew three years was plenty of time for teenage [E].

    Now you’re adding another two years.  Will it end there??

    As I said a year ago I can’t see how [S Company] can do what [Mr C] hopes.  [Mr C] will have to pay A LOT of money to get manager to run his shops and deal with every problem that arises, knowing that the owner lives twenty thousand kms away in Australia.  [S Company] aren’t big MacDonald’s stores.  How can they make enough money to pay the top managers AND pay [Mr C] half a wage each?

    It seems to me, the casual observer looking in from outside, that he would be best to get ‘his’ [S Company] making a profit then sell them and use the experience to start again in Australia. 

    Bye,

    [D].

22. The mother sent Mr Fowler’s response to the father who, on 21 July 2009, questioned the mother’s attitude to returning to the Netherlands for a further two years from which it seems reasonable to infer that he was discommoded that the mother was limiting herself, yet again, to a specific time frame. [12]

    [12] Annexure “SEB8” to affidavit of the mother sworn 19 March 2009, extracted in part and discussed earlier at paragraph 5 of these reasons

23. On 6 August 2009 the mother wrote to the father by email in the following terms:- [13]

    [13] Annexure to father’s statement annexed to the affidavit of Teresa Porritt sworn 19 March  2010 (no adequate page numbering)

    Hi, I think I would like to please take you up on the offer to stay a month longer?

    I am totally confused and do not understand it all anymore, but it is probably a good idea – but I don’t know anymore – every ‘street’ I enter in my head is a dead end … I am stuck …

    I do know one thing and that is that God is working through me.  he is busy on His work on me.  To break down the old dysfunctional parts and I know rationally that He will rebuild me …

    I will now call two psychologists’ practices for an appointment as soon as possible. 

    I have just heard that I am unable to sublet.

    If CPG – real estate – approves the couple, they can move in and my property can be stored under the house.

    Naturally, I do have to ensure that I return. 

    Last night, I had a really serious conversation with [B] about the effects/consequences returning to the Netherlands will have for [J] … She also asked me to stay as a result of the letter …

    Today I still or again feel terrible – but this too shall pass.

    [the mother]

1. The father agreed to the mother and N staying a month longer than was originally agreed, which brought the date to 15 September 2009.

2. In September 2009 there was further discussion between the father and the mother, in which the father agreed that N could stay until 15 December 2009.  The mother sent the father an email on 18 September 2009 saying, in effect, that she would return on 27 December 2009.[14]  The email included the following:-

   [14] Annexure to father’s statement annexed to the affidavit of Teresa Porritt sworn 19 March  2010 (no adequate page numbering)

   CHRISTMAS

   I did not realise this would be precisely between Sinterklaas and Christmas until you said “three months until 15 December”.  Instead of having to rush about arranging/buying things when we have just arrived in the Netherlands and have to overcome a jetlag.

   In my opinion, a better option would be to stay here for Christmas so we can prepare in calm.  I would like to stay here until after Christmas so that [J] can celebrate Christmas with her family.  This would be the fourth year that she would not celebrate it here with her family and this will not be the case next year either when we are back in the Netherlands – I am still thinking of a holiday, probably in September/October, for a month next year so she can come back to visit [Mr Fowler].  (I do not want to miss summer in the Netherlands again).  This would mean that she would again not be here for Christmas (that would be the fifth year in a row and perhaps six years – or more – before she would return??!).

   SCHOOL

   [J’s] school will continue until Friday 18 December when the summer holidays start here.  This will be a nice and good way of closure for her.  Thereafter start things in the Netherlands after Christmas (after [J] has first caught her breath again).

   I have an option for flying back to the Netherlands on 27 December.

   I today again called to first discuss it with you before I have to pay for converting the ticket. They said I have until 8 tonight to call back.

   (I have also tried for the 26^th, but no flights were available anymore.)

   I hope you are okay with his … I know that you want [N] back as soon as possible.  And that you probably do not agree at all;  I really am very sorry …

   I try to do what is right and not just for [N] – she is really okay right now.

   I know that it would be better if she has you close as well, but there are only ten days between the 15^th and the 25^th

   (You asked me several times what I thought of three months …;  I really did not know what to answer … do not quite know yet … what you want is that I suppose …

   I have to go back to the Netherlands because I have to, but I do not want to, you know that.  You force me to live a life I do not want.  And you broke off the relationship with me because I was so strong when reflecting my position and in standing up for myself and for [J] …)

   COMING HERE

   I would like to ask you and I would really like you to come here to spend a month (or three weeks if a month is not possible in connection with [S Company]) together here now the weather is nicer.  We WOULD be able to have a nice time and have family time together.  We could ‘sense’ how things are between you and me/take it easy, but we could in any case be together with the kids and create happy experiences and memories.

   I hope that you will be positive about this and that we can perhaps look together for a ticket for you.  Perhaps we can even fly back together – but that would mean that [E] would not see you before Christmas (but is that really so bad?  You often say that it is a day like any other and that you do not care much for all the commotion surrounding it.)

   Love/with love for us all, [the mother]

3. According to the mother’s evidence, she formed a serious relationship with her current partner, Mr T, in October 2009.  She had previously met him some three or four years earlier and been reacquainted in late 2009.  The mother’s evidence, under cross examination, was that from the second or third week of October 2009 the mother and Mr T had decided to be partners and “share different aspects of their life” with each other. Mr T works in rural Victoria.  His mother, sister and brother reside in the same general area.  His two children from an earlier relationship are aged 13 and 15 years and reside with their mother.

4. By email sent on 23 November 2009 by the mother to the father, the mother advised, inferentially, that she was not willing to return N to the Netherlands as previously agreed.[15]  She wrote:-

   Dear [Mr C],

   After long deliberation and following my intuition I am sorry to tell you that I cannot come back.  And that I do not want to come back.

   It is terrible situation and I am very sorry for you.

   But I really cannot come back to the Netherlands to live with you at this point in my life and that of the children.

   I cannot give my life and myself to fit back into your life.

   I hope we can reach some sort of ‘agreement’ so that you can see [N] when you are able to make time to see her.

   But I really cannot return at this time.

   I am really sorry.

   [15] Annexure to father’s statement annexed to the affidavit of Teresa Porritt sworn 19 March  2010 (no adequate page numbering)

5. The mother’s oral evidence was to the effect that she had decided much earlier than 23 November 2009 that she would not return N to the Netherlands but that, until 23 November 2009, she did not “have the courage” to tell the father.  She specifically denied that her then newly formed relationship with Mr T had anything to do with her decision.  She denied that she had either intended to return or had been equivocal about returning to the Netherlands until she commenced her relationship with Mr T.  Having had an opportunity to assess the mother in the witness box I do not accept her evidence.  The mother’s message commences “after long deliberation” which is a turn of phrase more consistent with her communicating a recent decision to the father than it is of her communicating a decision which she had reached many months previously.  The mother’s viva voce evidence was that she ‘had already decided inside myself but never voiced it.’  I find that evidence to be inconsistent with seeking legal advice in June 2009 and her message to the father on 18 September 2009 which is extracted at paragraph 62 of these reasons.  Even if the mother’s representations to the father were a ruse de guerre to buy more time, that does not explain the requests to Mr Fowler, in June 2009 and on 18 July 2009, to allow J to go back to the Netherlands. If the mother’s evidence is correct, her very long message to Mr Fowler on 18 July 2009 was a callous act bound to torment him for no apparent reason.

6. Having seen the mother give evidence and be cross examined extensively, it seems inherently more probable to me that by about October 2009, the mother identified features in her relationship with Mr T that made it more attractive for her to retain the children in Australia than to return with them to the Netherlands.  More likely than not everything fell into place, in relation to Mr T, in November 2009 and within a relatively short time thereafter, the mother sent the email of 23 November 2010 to the father.  The mother did not impress me as prone to agonise over an issue or to carefully analyse an idea. She is more likely to decide what she wants to do and then devote her energies to justification of her position.  In her own words, she is an intuitive decision maker which also resonates with the father’s experience during cohabitation of never being sure whether or not she would seek to return to Australia permanently.  Most significantly, no one alleges that there was joint decision by the mother or the father that N could remain in Australia.  The mother’s evidence at its highest is that she made the decision unilaterally.

7. In January 2010, the mother deregistered the children and herself as residents of the Netherlands.  She admitted that she did so without consulting the father and that he would only have found out about it in February 2010.  She admitted to doing so in the knowledge that the father would make a request under the 1980 Convention for the return of N to the Netherlands. In the witness box, she stated:

   I deregistered the children to make an affirmation that we were here [in Australia] and it is our home.

8. The mother gave evidence that the father asked her to do so. I do not accept that was the case.  The father’s evidence was that, after the mother had said that N would not return, he told the mother that her still drawing money from the Dutch government was inconsistent with her repudiation in later November 2009 of the Netherlands as N’s home.  I accept the father’s evidence that he was illustrating a point.

9. The mother was unclear as to whether deregistration would put an end to her Dutch pension entitlement.  I am not satisfied that the mother was simply reticent about notifying the Dutch government of a decision she took many months previously.  She did not say in her evidence that she wanted to keep receiving payments to which she knew she was not entitled.  On balance,  I am satisfied that the mother’s affirmatory act of deregistering herself and the girls as residents in Holland followed much more closely on her resolve to stay in Australia than she was prepared to admit in the witness box.  However, it is not my assessment that the mother consciously tells untruths.  More likely than not she approached the task of giving evidence as a process of explaining and justifying what she genuinely feels is the right outcome for her children at this point in time.

Habitual residence

1. The Regulations in relation to mandatory return apply only if N was habitually resident in the Netherlands immediately prior to the mother’s retention of her in Australia on 29 December 2009.

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

3. In the recent case of LK and Director-General, Department of Community Services[16] 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.

   [16] (2009) 237 CLR 582 (‘LK and Director-General’).

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

   [32]…because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.

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

   [34]Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.[17]

   (emphasis in original)

   [17] LK and Director-General, Department of Community Services (2009) 237 CLR 582 [32-34].

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

6. The mother’s case is that before she met the father she was habitually resident in Australia.  Upon moving to the Netherlands, she remained habitually resident in Australia as her residence in the Netherlands was conditional upon her agreement with Mr Fowler.  She testified words to the effect that  ‘inside myself I always wanted to go back to Australia;’ that she wished to go out of Australia for a little while and return to Europe, which meeting the father gave her an opening to do, but ‘always intended to return [to Australia].’

7. The mother says that the father knew of her agreement with Mr Fowler. Clearly that is correct.  He found out about the agreement when she arrived in the Netherlands in December 2005.  The father’s evidence was that he was not happy with the terms of the agreement and, together with her parents, thought that she should not be bound by it.

8. The mother’s evidence was that the father attempted to persuade the mother to break the agreement but she had expressed to the father that she would fulfil her obligations under the agreement.  I do not accept the mother’s evidence in this regard. I am satisfied that she was equivocal about the agreement with Mr Fowler. She did not fulfil all her obligations under the agreement.  The mother did not return J to rural Victoria for 10 weeks each year.  Having regard to all of the evidence, it appears that whilst the mother was away from Australia, life in the Netherlands was not all she had hoped it might be.  However, she did not burn her bridges in the Netherlands nor commit to returning to rural Victoria.  I do not get a sense from the mother’s evidence that she would have returned to Australia to live permanently if everything to which she aspired had been available in the Netherlands.  Even when the mother and girls did come to Australia in March 2009, there was a clear and explicit expectation in the father that she would return within six months.  The mother is adept at keeping her options open and I am satisfied that is what she did.

9. It was submitted on behalf of the mother that in the case of a very young child (in this case one year old), it is less sensible to speak of the habitual residence of a child as distinct from the habitual residence of the person on whom the child is dependent.  The parents’ relationship whilst the mother was pregnant with N was deteriorating, and by the time N was one year old had broken down completely.  The mother submits that although the parents remained living together, N was ‘emotionally estranged’ from the father. The mother’s case is that, as N’s primary carer, she determined N’s habitual residence.

10. Counsel for the mother put the mother’s case, first, on the footing that at all relevant times, the mother’s habitual residence was Australia and, therefore, so too was N’s.  This is regardless of the fact that, until March 2009, N had not set foot in Australia.

11. It was submitted on behalf of the mother, in the alternative, that if he mother had no ‘settled intention’ to live in Australia, N would have no habitual residence until the mother was living in a country on a stable footing (as she is now).  Furthermore, although the mother’s intention to live in Australia may have vacillated, this is an ambiguity envisaged by LK and Director-General and does not disprove that Australia was, as at 29 December 2009, N’s place of habitual residence.

12. The applicant SCA bears the onus of proving that N was habitually resident in the Netherlands when she was retained in Australia on 29 December 2009.  The SCA emphasised the undisputed evidence that the mother and father held a shared intention to live in the Netherlands together when the mother left Australia in late 2005, and that the mother’s own evidence was that she was looking forward to starting a life with the father.  The applicant SCA opened its case with a statement the mother and father agreed, as between themselves, not to be bound by the mother’s agreement with Mr Fowler.  As indicated earlier, the father’s evidence fell short of this, in that the father acknowledged the mother’s agreement with Mr Fowler, albeit in the belief that the mother had signed the agreement under duress and ought not be bound by it.  Nonetheless, as submitted by the SCA, the evidence of both parents supports the finding that it was not the joint intention of the parents that N live in Australia and that is a very important aspect of the court’s determination of habitual residence.

13. In emails dated 6 August 2009 and 18 September 2009, the mother makes two separate requests of the father for an extension of her and the children’s time in Australia, without evincing any intention not to return to the Netherlands.  That is not consistent with the mother and father having agreed that the mother would, indeed, return to Australia permanently.  According to the SCA, the mother’s intention to remain in Australia only came about after she had established a relationship with Mr T.  I have already found that Mr T was an ingredient in the mother’s decision to remain in Australia.

14. Regarding the agreement between the mother and Mr Fowler, the SCA submitted that Mr Fowler was well aware of the mother’s intention to return to the Netherlands, at one stage thanking the father by email for allowing the mother and children to remain in Australia for ‘so long.’  The email from Mr Fowler to the mother of 29 July 2009 is evidence of his agreement to the mother staying in the Netherlands with the children for a further two years. Accordingly, it could not be said that the mother’s intention to return to the Netherlands was significantly affected by her prior agreement with Mr Fowler. I find considerable force in the submission of the SCA that the mother deemed herself to be bound by the agreement with Mr Fowler at her convenience and upon deciding that she did not wish to return to the Netherlands in November 2009.

15. N was born and registered in the Netherlands, where she lived with both parents and J as a family unit.  She travelled with the mother and her sibling on a tourist visa and has no present residence entitlement in Australia. Upon travelling to Australia, the mother was unsure as to whether she herself was entitled to permanent residency.  The mother took no steps to deregister N in the Netherlands until after advising the father that she would not return to the Netherlands and these Hague proceedings were commenced in Australia.

16. The SCA correctly submitted that an intention to acquire a place of habitual residence does not travel unconditionally with the primary caregiver and that no parent can unilaterally change a child’s place of habitual residence.  Indeed, the matter of LK and Director-General is demonstrative of considerably more complexity than was suggested by the mother’s submissions.  At paragraph 27, the High Court said:

    When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.

    (emphasis added)

1. The passage quoted earlier at paragraph 34 of LK and Director-General makes it clear that the question of intention should not be confined to the intentions of the primary caregiver of the child, but will usually encompass the intentions of both parents.  Accordingly, the intentions of the primary caregiver should not operate to obscure the joint intentions of the parents.  Further, paragraph 34 of LK and Director-General states that when parents are living together, children will have the same habitual residence as their parents and generally neither parent can unilaterally change that habitual place of residence.

2. Having regard to the nature of habitual residence, I conclude that both findings in relation to habitual residence for which the mother contends are implausible. This is obvious by looking, hypothetically, at the application of the 1980 Convention to the scenarios which the mother would have the court accept. First, she contends that N was, and always had been, habitually resident in Australia.  This means that for the first year of N’s life she was habitually resident in a country she had never entered.  If, hypothetically, the father had removed N from the Netherlands to, for example, Spain prior to the mother being able to bring her to Australia, would the father have had to apply to the Central Authority in Australia for the ‘return’ of N to Australia or to the Netherlands? Applying the same hypothetical removal to the mother’s alternative scenario, that N was a child without any habitual residence, then she would have been a child who had been born of Dutch parents and lived all her life in the Netherlands but to which the forum provisions of the 1980 Convention could not apply.

3. Counsel for the independent children’s lawyer submitted that the case was not as complicated as suggested by the competing submissions of the mother and SCA. Counsel acknowledged there was an agreement between the mother and Mr Fowler in 2005, but that habitual residence must be determined according to all the circumstances of the case.  The mother lived in the Netherlands between 2005-2009 with the father, J and N when she was born in March 2008.  The parents shared a house and received social security payments for the children.  The mother’s travel to Australia in February 2009, like her prior trips to Australia, was predicated on her intention of returning with the children to the Netherlands.  This, in Mr Hoult’s submission, is clear evidence that N’s place of habitual residence was the Netherlands, regardless of any uncertainty or plans the mother held in the back of her mind. 

4. I accept the submission of the ICL.

5. I do not disregard the mother’s agreement with Mr Fowler. However, that was an agreement that related only to J, not to the mother and certainly not to N.  The significance of the mother’s agreement with Mr Fowler is that it provided the parameters within which the mother should have resolved or obtained a determination about her entitlement to remove N from the Netherlands permanently.

6. The terms of the agreement with Mr Fowler would have been cogent and perhaps compelling evidence to have placed before the courts of competent jurisdiction in the Netherlands if the mother had sought parenting orders in a timely and appropriate manner prior to her departure to Australia, including being able to bring N to Australia to live.

7. In rejecting the mother’s submissions, I am satisfied that her agreement with Mr Fowler, made in December 2005, did not disqualify N, born more than three years later to another father, from having a place of habitual residence within the meaning of the Regulations. The result for which the mother contends is convenient for her and perhaps for J but it is inappropriate for N having regard to the rights of children which the contracting states were convinced ought to be protected when they settled the terms of the 1980 Convention. Those rights include the right of a child, like N, to have matters about her custody and parenting decided by courts in the country in which they were habitually resident up until the unilateral act of one parent to the exclusion of the other parent.

Conclusion

1. I find that N was habitually resident in the Netherlands as at 29 December 2009. There were no other preliminary matters arising under rr 16(1) and 16(1A). Accordingly, I am satisfied that the retention by the mother of N in Australia as at 29 December 2009 was wrongful within the meaning of the Regulations.

2. Pursuant to earlier orders made in this proceeding and in the proceeding between the mother and Mr Fowler, being Fowler and Brume, I will adjourn the mother’s case about the application of various exceptions to return and the exercise of any discretion which may arise to retain N in Australia.  Subject to further order of the court, that case will follow the determination of the application by Mr Fowler to restrain the removal of J from Australia.  The proceedings involving Mr Fowler are listed for final hearing on 16, 17 and 18 June 2010, dates allocated largely for the convenience of Mr Fowler’s counsel, Mr North SC, who has taken the matter pro bono.

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  31 May 2010