STATE CENTRAL AUTHORITY & CAMDEN
[2012] FamCAFC 45
•22 March 2012
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & CAMDEN | [2012] FamCAFC 45 |
| FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Habitual residence – where the parties and their children had moved from Australia to the United Kingdom and after ten months the mother returned with the children to Australia – where the trial Judge dismissed the State Central Authority’s application for the children to be returned to the United Kingdom – whether the trial Judge erred in her consideration of the Full Court’s decision in Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 in applying the test for determining the children’s habitual residence and failing to properly take into account all relevant matters – where the trial Judge erred in dividing the habitual residence test into two separate exercises, putting aside her finding that the parties’ had a shared intention for the children to reside in the United Kingdom before focusing on the mother’s social integration and the parties’ financial viability in the United Kingdom – where the High Court’s decision in LK v Director-General, Department of Community Services (2009) 237 CLR 582 has authoritatively settled the principles applicable in determining habitual residence and the Full Court’s decision in Zotkiewicz has not prescribed a new two limbed test to be applied in every new case but rather determined that particular case – where the trial judge also erred in giving insufficient weight to the combination of her findings about the parties’ settled purpose and the fact that they had been living in the United Kingdom pursuant to that settled purpose for ten months at the time of the mother’s unilateral removal of the children from the country – where the trial judge attributed too much weight to the mother’s unhappiness in the United Kingdom – appeal allowed. FAMILY LAW – APPEAL – COSTS – where the State Central Authority conceded that a costs order should not be made against the mother in the event the appeal is successful on the basis that s 14(1)(e) of the Federal Proceedings (Costs) Act 1981 (Cth) appears to prevent a grant of a certificate to the State Central Authority – where the mother sought a costs certificate – no order made as to costs and costs certificates granted to the mother in relation to the appeal and the new trial pursuant to s 6 and s8 of the Federal Proceedings (Costs) Act 1981 (Cth). |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 14(1)(e) Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14 and reg 16 |
| LK v Director-General, Department of Community Services (2009) 237 CLR 582 Punter v Secretary for Justice [2007] 1 NZLR 40 Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 |
| APPELLANT: | State Central Authority |
| RESPONDENT: | Ms Camden |
| FILE NUMBER: | MLC | 5776 | of | 2011 |
| APPEAL NUMBER: | SOA | 64 | of | 2011 |
| DATE DELIVERED: | 22 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Finn, Strickland and Forrest JJ |
| HEARING DATE: | 16 February 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2011 |
| LOWER COURT MNC: | [2011] FamCA 666 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Stoikovska |
| SOLICITOR FOR THE APPELLANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Mr Barbayannis |
| SOLICITOR FOR THE RESPONDENT: | Denise Dwyer Lawyers |
Orders
The appeal be allowed.
The orders made by the Honourable Justice Bennett on 12 August 2012 be set aside.
The State Central Authority’s application filed 30 June 2011 be remitted for rehearing by a Judge other than the Honourable Justice Bennett.
There be no order as to costs.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent mother in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Camden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 64 of 2011
File Number: MLC 5776 of 2011
| State Central Authority |
Appellant
And
| Ms Camden |
Respondent
REASONS FOR JUDGMENT
Introduction
The State Central Authority (“the SCA”) appeals against the order of Bennett J made on 12 August 2011 dismissing the application of the SCA for an order that the children, T, born in December 2007, and J, born in April 2009, be returned to the United Kingdom (“the UK”).
That application was made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) that give effect to Australia's obligations as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
The SCA complains that her Honour erred in finding that the children were not habitually resident in the UK immediately before their mother brought them back to Australia. They had been living in the UK with both their parents for ten months, having moved there from Australia where they had lived all of their short lives until that time.
The Relevant Regulations
Of the Regulations, those that were relevant to her Honour’s decision and this appeal are as follows:-
14 Applications to court
(1) If a child is removed from a convention country to, or retained in, Australia:
(a)the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders:
(i)a return order for the child;
…….
16 Obligation to make a return order
(1)If:
(a)an application for a return order for a child is made; and
(b)the application … is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority … satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body;
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2)If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
Background
The following background facts, which are unchallenged, are taken from
her Honour’s comprehensive reasons for judgment.
The mother is an Australian citizen by birth, aged 34 at the time of hearing. The father is a British citizen by birth, aged 33 at the time of hearing. He is a permanent resident of Australia.
The couple met in Brisbane in 2001 whilst they were both holidaying and renewed their acquaintance when the mother was travelling in the UK They lived together at the home of the father’s parents in the UK for the first half of 2005 before the mother returned to Australia. The father travelled to Australia in late 2005, took up cohabitation with the mother again and they married in Australia in April 2006.
The couple purchased a home in Melbourne in November 2007, with the financial assistance of the father's mother, but in 2010, they decided to move to England so that their children could get to know their paternal grandparents and other family members. They sold their home in Melbourne, packed up all of their possessions, and shipped virtually all of them to the UK, leaving only a small number of boxes stored with the mother’s mother.
The family departed Australia on 20 July 2010. Their immigration departure cards, completed by the father, stated that they were leaving Australia temporarily and expecting to return in five years.
The mother entered the UK on a settlement spouse visa, which entitled her to work there and, within a month or so of arrival, she had obtained full-time employment in the healthcare field and the children were enrolled in part-time child care, three days per week. A few months after their arrival, the father enrolled in a fee paying course in a healthcare field and later still, in early 2011, he obtained work as a labourer, working for his brother three days per week.
After their arrival in the UK, the family lived with the father's parents. On or about 12 October 2010, the couple went together to the bank to put the mother's name on the father's bank accounts and the father enquired of the bank officer about mortgage finance to enable them to buy a property in the UK. Lack of a credit history prevented them from doing so at that time.
The mother became unhappy, particularly living with her parents-in-law. She saw a doctor on 12 October 2010, and the doctor’s records include notes made that day that she was missing home, that she was offered counselling and was likely to be suffering from circumstantial depression. She saw the same doctor again on 18 November 2010 and the doctor’s records include notes made that day that the mother was “feeling ok”.
The mother argued fiercely with her father-in-law around the middle of October 2010 and she fled the home, called friends in Melbourne and ended up at the home of the father's aunt. The Melbourne friends called police in the UK and also the Australian High Commission in London. The mother received a call and follow up enquiry from the Australian consular office in the UK. She returned to the father's family home to live though and the couple then decided to move out of the father's family home as soon as possible. However, they could not procure suitable rental accommodation until January 2011.
In November 2010, the father sought legal advice because he feared that the mother may try to take the children back to Australia without his consent. He hid the children's passports for a time. The mother was miserable at that time, but had no intention or desire to leave England.
The family moved into a rented house in mid January 2011. They paid five months rent in advance and entered into a lease that was to expire in August 2011. Once housed independently of the father's parents, the mother still thought the father was spending too much time at cricket or outside the home and not enough time with her and the children and she complained to him about that.
On Monday 9 May 2011, the father told the mother he wanted a divorce from her. On Thursday 12 May 2011, the mother took the two children, and flew with them back to Australia.
The Application of the SCA
The SCA filed an Application in the Family Court on 30 June 2011, seeking the return of the children to the UK at the behest of the father. The mother filed an Answer on 26 July 2011, in which she put the children's habitual residence at the time of their removal from the UK in issue. She also alleged that the father had consented to their removal.
The trial Judge encouraged the parties to mediate their dispute and when that was unsuccessful, a hearing took place over four days from 1 to 4 August 2011. The father travelled to Australia for the hearing. An Independent Children's Lawyer was appointed and all parties were represented by counsel at the trial. The mother and the father gave evidence and were both extensively cross-examined. Several other witnesses relied upon by each of the parties also gave evidence and were cross-examined, including some via electronic means from the UK.
The trial Judge pronounced her orders dismissing the SCA’s application soon after the hearing and published comprehensive reasons within a few weeks.
The trial Judge’s reasons for judgment
Her Honour began her reasons for judgment by setting out the issues requiring her determination. The mother resisted the return of the children to the UK on the following grounds (at paragraph 5):-
·The children were not habitually resident in the UNITED KINGDOM immediately prior to 12 May 2011 and, therefore, the retention is not wrongful within the meaning of the Regulations;
·If the retention is found to be wrongful, the husband had consented to the removal of the children from the United Kingdom within the meaning of Regulation 16(3)(a)(ii); and that the discretion which arises by virtue of the exception being made out ought to be exercised in favour of the children not being returned to the United Kingdom notwithstanding that it is their place of habitual residence; and
·If the retention is found to be wrongful, there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of reg 16(3)(b); and that the discretion which arises by virtue of the exception being made out ought to be exercised in favour of the children not being returned to the United Kingdom notwithstanding that it is their place of habitual residence.
Having explained how those matters related to the provisions of Regulation 16, her Honour then went on in her reasons to record in significant detail the conduct of the proceedings and the evidentiary principles that guided her decision making. She recorded and discussed much of the evidence as to the history of the couple’s relationship and their decision to leave Australia and move their family to the UK. Matters of fact referred to by her Honour were expressly recorded as findings of fact. In recording her findings of fact,
her Honour made it clear that she found the evidence of the father to be more reliable.
There followed acknowledgment by her Honour that the determination of habitual residence is a question of fact in each case before she went on to discuss the High Court’s most recent consideration of the process of determining habitual residence in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”). Her Honour observed that the High Court had confirmed:-
·that the search is for the connection between the child and the requesting state in which it is alleged the child was habitually resident immediately before removal;
·there is a wide variety of circumstances that bear upon where a child resides and whether that residence is habitual; and
·the intention of the parents, although not solely determinative, is relevant to the significance to be attached to particular circumstances in each case like the duration of a person’s connections with a particular place of residence.
Her Honour went on to discuss the most recent consideration of habitual residence by the Full Court of this Court in Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 (“Zotkiewicz”). In that decision, the Full Court had also discussed and applied the High Court’s decision in LK.
Her Honour cited the following passage from Zotkiewicz:-
82.… Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.
83. In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence.”
Her Honour then said she would accept those passages as a correct statement of the law and that she would apply those principles to her determination of the case.
Her Honour then turned back to a discussion of the evidence and the respective cases of the parties as to their intentions when they moved to the UK.
Her Honour again observed that she was not impressed with the evidence of the mother and found her to be “a difficult witness to believe.” In contrast,
her Honour found the father to be an honest witness and repeated her earlier conclusion that she preferred his evidence where it conflicted with the mother’s.
For example, her Honour expressly said that she accepted the following evidence from the father as to their intention (at paragraph 98):-
I was open with [the mother’s] family and friends. I never put a time limit on our move when discussing the issue with them. I did not say I would never return to Australia, whether this be for a holiday or to live. I was definitely not closing the door to returning to Australia but our move was to live in England for the time being.
Her Honour then said this at paragraph 102 of her reasons:-
On the facts of this case, I am satisfied to the requisite standard that I can infer that the parents had a shared intention that the children would reside in the United Kingdom for the time being. I accept that the mother thought that the family would return to Australia and that the father did not disabuse her of that belief.
After making that finding about the parents’ “shared intention”, her Honour then said this:-
103. I now turn to the second limb of the test described by the Full Court in Zotkiewicz … which is to determine whether the period of time spent in the United Kingdom was sufficiently appreciable for it to be said that the underlying reality of the connection between [T] and [J] and the United Kingdom was such as to justify a finding that they are habitually resident in that country. …
104. For the purpose of determining whether “the underlying reality of the connection between the [children and the United Kingdom] was such as to justify a finding [that [T] and [J] were] habitually resident” there, I look to the extent to which the parents had become integrated. That is, both parents, either individually or as a unit. I accept that the father’s reassimilation into his family of origin and a social network of cricket buddies and activities was swift and complete. It is the mother’s social integration and the financial viability of the couple’s future in the United Kingdom that require consideration. If only one half of the couple had ‘set down roots’, that does not equate to the parents and, through them, the young children being assimilated to the extent that it is appropriate to regard them as habitually resident in the United Kingdom for the purpose of the Regulations.
Her Honour then set out (at paragraph 105) matters of fact the SCA submitted evidenced the “parents’ assimilation into the community in the United Kingdom”. They were:-
a)The parents sold, rather than leased, their home in Australia;
b)The parents resigned from their employment in Australia;
c)The children’s places at child care were relinquished instead of being sought to be held open;
d)At very significant expense to themselves, they transhipped 161 boxes of household goods and belongings to the United Kingdom and next to nothing (of other than sentimental value) was left in Australia;
e)Once in England, the mother sought and obtained full-time employment within weeks of the family’s arrival;
f)Once in England, the children were placed in child care;
g)After about 5 months in England, the father enrolled in a course of education and training;
h)Eventually, the father started to work three days a week for his brother.
i)After having fought bitterly with her parents in law in October 2010, the mother did not resolve to leave England and even returned to live in their family home until she and the father found rental accommodation in the following January;
j)Once in England, the mother did not attempt to leave until after the father told her he wanted a divorce; and
k)Once in England, the couple took a six month lease on a property.
Her Honour then discussed that submission at length in paragraphs 106 to 116. In summary, her Honour found:
·That the parents had sold their home in Australia and wanted to buy one in the UK.
·That the parents’ taking employment in the UK was an economic imperative.
·That the mother was living in the UK by choice and did not want to leave there before the father told her he wanted a divorce.
·That the move into their own rented house was driven by the mother’s inability to tolerate living in the home of the father’s parents.
·That the father did not consider the mother to be content or settled in the UK for any appreciable period of time.
·That putting the children into day care three days each week in the UK did not in itself evidence the family’s assimilation into the UK.
·That the mother only made a limited number of friendships in the first ten months in the UK.
·That the mother would now have a different immigration status in the UK which has some practical consequences.
·That the father had agreed to generous preconditions to the mother and the children’s return to the UK but proposed caring for the children whilst the mother worked.
·That the father had conceded that the family’s life was “not financially viable” in the UK.
·That the family were in the process of integrating into life in the UK at the time the father told the mother he wanted a divorce, but had not yet done so.
At the conclusion of that discussion, her Honour said:-
117. … I am not satisfied that immediately prior to the mother’s removal of the children from the United Kingdom, that the mother and, through her, the children had the “real and active connection” with the United Kingdom to which the Full Court referred in Zotkiewicz…
118. I am not satisfied that the children were habitually resident in the United Kingdom immediately prior to being removed by the mother to Australia in May 2011. Accordingly, the application of the SCA must fail.
Her Honour then acknowledged that her determination of the habitual residence point was dispositive of the SCA’s application but then went on to deal with the other matters in issue on the application, namely the matters raised by the mother as giving rise to the discretion whether to return.
As to the ‘consent’ issue, at paragraph 156 of her reasons, her Honour said:-
I am satisfied that there is no substance at all to the mother's case that the father consented to her removal of the children from the United Kingdom on 12 May 2011. In the event that I had been satisfied that the children were habitually resident in the United Kingdom, no exception to mandatory return would have been available to the mother based on consent.
As to the ‘grave risk’ issue, at paragraph 141 of her reasons, her Honour said:-
I conclude that the mother’s case under reg 16(3)(b) is without merit. Had I found that [T] and [J] were habitually resident in the United Kingdom, no discretion to refuse the return would have arisen in this context on the facts of this case.
This Appeal
As we have already observed, the SCA challenges her Honour’s determination that the children did not habitually reside in the UK when their mother removed them to Australia in May 2011. The SCA relied on two grounds of appeal. First, that her Honour erred in applying the test for determining the habitual residence of the children and, second, that her Honour erred by failing to properly take into account all relevant matters.
There was no challenge by the appellant or the respondent on this appeal to
her Honour’s findings in respect of the matters raised by the mother that go to the existence or otherwise of the discretion to refuse a return order. However, counsel for the mother at the appeal informed us that should we find merit in the SCA's appeal against the habitual residence finding, the mother seeks the opportunity to adduce fresh evidence in respect of matters going to the discretion to refuse a return order.
The applicable principles and her Honour’s application of them
The law concerning the process by which a child’s place of habitual residence is determined has been authoritatively settled by the High Court in LK. As we have already observed, her Honour referred to that decision and this Court’s discussion of it in Zotkiewicz in a very thorough manner.
However, for the SCA, it was submitted that her Honour erred in the application of the principles by ultimately focussing on and giving too much weight to “the mother’s social integration” in the UK at that time, as well as “the financial viability of the couple’s future” in the UK (paragraph 104) before determining (in paragraph 117) that she was not satisfied “the mother, and through her, the children had the ‘real and active connection’ with the United Kingdom to which [this Court] referred in Zotkiewicz”. It was submitted for the SCA that “[t]he proper test requires ascertaining the connection between the children and the UK, taking into account a broad range of factors, including but not limited to the mother’s integration into the UK.”
For the SCA, it was further submitted that even if her Honour did not misdirect herself in respect of the proper application of the principles, her Honour erred in determining that she was not satisfied that the mother had a “real and active connection” with the UK, such lack of satisfaction being against the weight of her Honour’s other findings of fact.
The judgment of the High Court in LK makes it clear that “habitual residence” is to be distinguished from concepts such as domicile and that determining the settled purpose of the parents is important in the process but not necessarily decisive. At paragraph 22 of the joint judgment of French CJ, Gummow, Hayne, Heydon and Kiefel JJ, it was said:-
… The search must be for where a person resides and whether residence at that place can be described as habitual.
It was also said (at paragraph 25):-
... it may be accepted that “[h]abitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities” (Scoles, Hay, Borchers and Symeonides, Conflict of Laws, 4th Ed (2004) at 247, 4.14)
The High Court accepted (at paragraph 44) that the inquiry into “habitual residence” is a broad factual inquiry and approved the following passage from the decision of the Court of Appeal of New Zealand in Punter v Secretary for Justice [2007] 1 NZLR 40 (“Punter”):-
Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP [2005] 3 NZLR 590 held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.
Her Honour certainly undertook a broad factual enquiry, presiding over a hearing that took place over four days, at the end of which extensive factual findings were made. Her Honour did consider many relevant factors, including many of those identified in the passage quoted from Punter.
However, after having initially made the significant finding that the parents “had a shared intention that the children would reside in the United Kingdom for the time being”, a finding clearly open to her Honour and not subject to any challenge on this appeal, her Honour went on to say (at paragraph 104):-
For the purpose of determining whether “the underlying reality of the connection between the [children and the United Kingdom] was such as to justify a finding [that [T] and [J] were] habitually resident” there, I look to the extent to which the parents had become integrated. That is, both parents, either individually or as a unit. I accept that the father’s reassimilation into his family of origin and a social network of cricket buddies and activities was swift and complete. It is the mother’s social integration and the financial viability of the couple’s future in the United Kingdom that require consideration. If only one half of the couple had ‘set down roots’, that does not equate to the parents and, through them, the young children being assimilated to the extent that it is appropriate to regard them as habitually resident in the United Kingdom for the purpose of the Regulations. [our emphasis]
We accept, as also emerged from the judgment in LK (at paragraph 27), that when determining the habitual residence of very young children, as in this case, consideration of the place of habitual residence of “the person or persons upon whom the child is immediately dependent for care and housing” is the sensible course. We acknowledge that in LK their Honours did stress, after acknowledging the appropriateness of that course, that:-
...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…
However, their Honours did go on to say (at paragraph 34):-
… 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. …
The mother in this case was but one of two parents living together as a couple with whom the two young children lived, and upon whom they were dependent for care and housing at the time immediately before the mother removed them from the UK. Considering what was said in LK, it must be accepted that the two young children in this case had the same habitual residence (if any) as their parents immediately before their mother removed them from the UK.
Accordingly, there can be no real differentiation between the search for where the children habitually resided immediately before being removed from the UK and the search for where their parents (albeit for the time being) habitually resided at that time.
In this case, although the mother and the father differed at trial as to what their relevant intentions had been, as we have already observed, her Honour expressly determined that the two parents had a shared intention of moving to, and living in the UK. Her Honour determined that they moved the family to the UK so that the children could get to know their paternal grandparents and other family members and she determined that their shared intention was for the children to reside in the UK “for the time being”. The evidence also establishes that the couple had no definite date planned for a return to Australia. That can only be properly described as a finding of settled purpose on the part of the parents, and that is, as has been observed, an important but not necessarily decisive factor to be considered in the process of determining habitual residence.
In making her findings in respect of the settled purpose of the parents,
her Honour was clearly left in no doubt. Indeed, her Honour specifically went as far as to say (in paragraph 101):-
… I am satisfied that, were it not for the father having said on 9 May 2011 that he wanted a divorce, the family would still be in England now. To the extent that the mother’s case deviates from these findings, I reject it… Likewise, as far as intentions can be inferred and on the facts of this case, I reject any suggestion that as soon as the father asked for a divorce, the parents’ shared intention lapsed and the mother was entitled to return with the children to Australia. To suggest that intention lapses, where a family has fairly recently relocated from one country to another and the parents’ relationship fails, is to lose sight of the fact that most international parental child abductions often occur in the context of a relationship breakdown. If the breakdown of a relationship entitled one parent ipso facto to take the children back to the family’s former place of habitual residence, there could be no scope for the operation of the 1980 Convention in relation to families who have moved across international borders prior to an alleged wrongful removal or retention and parenting arrangements for those children would rest with the unilateral act of an unhappy parent.
However, having said that, her Honour then put those very significant findings to one side and, apparently quite separately and independently from those findings, turned to consider what she referred to as “the second limb of the test described by the Full Court in Zotkiewicz”.
We do not consider that this Court in Zotkiewicz in fact prescribed a new two limbed test for determining habitual residence in each new case in which it has to be decided. The High Court’s decision in LK authoritatively settled the applicable principles. This Court’s subsequent decision in Zotkiewicz determined the appeal in that particular case. We consider it important to emphasise that we read the reference by the Full Court in paragraph 82 of the reasons to “the task of the Judge” as being “twofold” as being directed to the determination of that case on its facts and not to all Hague Abduction Convention cases where “habitual residence” is in issue.
We consider that her Honour fell into error in this case by dividing the determination of the habitual residence issue into two separate exercises, putting the very significant finding as to the shared intention of the parties to one side before focusing, in an apparently singularly determinative manner, on the mother’s “social integration” in the UK, as well as “the financial viability of the couple’s future in the United Kingdom” (as the highlighted part of the passage cited in paragraph 45 hereof demonstrates).
Furthermore, although we acknowledge the determination of the couple’s settled purpose to live in the UK is not necessarily solely determinative of the habitual residence issue, in the circumstances of this case, particularly the fact that the family had already been living in the UK for ten months pursuant to that settled purpose, her Honour’s findings in respect of that settled purpose had to attract substantial weight in her Honour’s process of determination.
Consideration of her Honour’s reasons, and particularly paragraphs 106 to 116 that we have summarised earlier in these reasons, leads us to the conclusion that her Honour gave insufficient weight to the combination of her findings about the couple’s settled purpose and the fact that they had been living in the UK pursuant to that settled purpose for ten months at the time of the mother’s unilateral removal of the children from the country. In addition, we conclude that her Honour attributed insufficient weight to many other relevant facts in the determination process. They include:-
·that the mother obtained full-time employment soon after the family arrived in the UK and maintained that same employment even at the time she departed the country ten months later;
·that the couple moved into their own rental accommodation eight months after they arrived in the UK, taking out a lease on that property for a period of six months and paying for several months of that period in advance from the capital they retained from the sale of their property in Australia;
·that after moving into their rental accommodation the couple purchased new white goods, a computer, a second TV and a DVD sound system from the capital;
·that the couple purchased a car soon after they arrived in the UK; and
·that the children were placed in child care three days per week by the parents in the UK at around the time the mother found full-time employment although the father was not working at that time.
At the same time as attributing insufficient weight to those relevant matters,
her Honour has, we find, attributed too much weight to the mother’s unhappiness in the UK. Her Honour found that the mother was unhappy with the living arrangements when the family was living with the father’s parents and later was unhappy that the father was spending too much time playing cricket and with his friends. Although we accept that the unhappiness of one or both members of a couple in respect of various aspects of their living arrangements, or with the underlying relationship itself, might be relevant to consider in the broad factual enquiry, such unhappiness cannot, without more, (such as, in Zotkiewicz, where the mother had actively attempted to terminate her residence and that of the child in Poland soon after their arrival), attract very much weight. Whilst her Honour found that the mother was unhappy and that the father “was not under the impression that the mother was, for any appreciable time, content or settled” in the UK, her Honour made no findings that the mother was desirous of, or even considering, taking the children from the UK in the ten months before the father told her he wanted a divorce. Indeed, and importantly, her Honour positively found, notwithstanding the mother’s unhappiness, that she would still be in the UK but for the father telling her he wanted to divorce her.
We also conclude that her Honour attributed too much weight to what she described as “the precarious nature of the couple’s finances just prior to the mother’s removal of the children”. Her Honour observed that the couple’s financial circumstances at that time made “the proposition that the mother had integrated into life in the United Kingdom doubtful.” Certainly, consideration of the couple’s “economic integration” in the UK at that time was a relevant exercise in light of LK and the matters set out in the approved passage from Punter, but as her Honour had found that the mother was employed full-time and that the father was employed part-time and that they had rental accommodation pursuant to a lease valid until August 2011, that their finances were nevertheless “precarious” does not, we conclude, prove they had not integrated economically in the UK. In addition, we note that her Honour (in paragraph 115) said when discussing this point:-
Under cross-examination, the father conceded that the family’s life before 12 May 2011 was “not financially viable” …
However, we are satisfied that the words directly quoted by her Honour in her reasons do not appear anywhere in the transcript of the father’s cross-examination. Care must be taken by Judges when using direct quotes in their reasons to ensure that the words quoted will be in the official transcript.
Finally, we are satisfied that in determining that the children were not habitually resident in the UK at the relevant time, her Honour attributed weight to matters that were not relevant to the determination of the issue. Particular examples of such matters are:-
·that the mother’s visa status upon re-entry to the UK now would have to be different from that she enjoyed under the settlement spouse visa pursuant to which she was lawfully resident in the UK for the ten months she was there (at paragraphs 112 to 113); and
·that the father could now return to Australia as a permanent resident, entitling him “to all government assistance” (at paragraph 115).
Conclusion
We are satisfied that the grounds of appeal have merit and that her Honour fell into error by misdirecting herself in respect of the manner in which she was to determine the question of the children’s habitual residence and also by finding, against the weight of the evidence, that she was not satisfied that the children were habitually resident in the UK immediately prior to being removed to Australia by the mother in May 2011. Accordingly, the appeal against
her Honour’s order dismissing the SCA’s application for a return order must be allowed.However, as we have already noted, counsel for the mother informed us during the hearing that in the event that the appeal is successful, the mother nevertheless seeks the opportunity to adduce fresh evidence in respect of matters going to the discretion to refuse a return order. In addition, we note there was extensive cross-examination of the parties during the trial upon which her Honour made important findings of credit. On the appeal, counsel agreed that these matters point to the need for the matter to be remitted for a rehearing if the appeal was allowed. We consider, in the circumstances, that the SCA’s application for a return order in respect of these two young children should be remitted for rehearing by a Judge other than her Honour. We will order accordingly.
Costs
We received submissions in respect of costs at the conclusion of the hearing. Counsel for the mother informed us that his client was in receipt of a grant of legal aid in respect of the appeal. He submitted that his client should not be ordered to pay the SCA’s costs and that his client should be granted a certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) should the appeal be successful.
Counsel for the SCA commendably conceded that an order should not be made that the mother pay the SCA’s costs if the appeal is successful and did not argue against the proposition, noted by this Court previously, that the provisions of
s 14(1)(e) of the Federal Proceedings (Costs) Act 1981 (Cth) appear to prevent the grant of a certificate to the SCA.We are satisfied, having regard to the basis upon which we have allowed the appeal, that there should be no order as to costs and the mother should be granted certificates pursuant to the provisions of s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal and the new trial and we will order accordingly.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Forrest JJ) delivered on 22 March 2012.
Associate:
Date: 22 March 2012
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