State Central Authority & CR
[2005] FamCA 1050
•4 November 2005
[2005] FamCA 1050
FAMILY LAW (CHILD ABDUCTION) REGULATIONS 1986
IN THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE No. (P)MLF2291 of 2005
BETWEEN:
THE SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES
STATE CENTRAL AUTHORITY
(Applicant)
and
CR
(Respondent)
CORAM: THE HONOURABLE JUSTICE KAY
DATE OF HEARING: 24 October 2005
DATE OF JUDGMENT: 4 November 2005
REASONS FOR JUDGMENT
APPEARANCES:
Mr O’Shannessy of Counsel, instructed by Middletons Lawyers, DX 405, Melbourne, appeared on behalf of the applicant.
Ms Dowler of Counsel, instructed by Cosgriff Orchard Legal, DX 62511, Echuca, appeared on behalf of the respondent.
Catchwords: CHILD ABDUCTION – application for return of an infant child wrongfully removed from America to Australia – mother Australian, father American - baby conceived in the USA but born in Australia – parties returning to USA when child 5 months old – mother removing child 6 months later - whether the child was habitually resident in America –application seeking return filed on the anniversary of the day the flight left the USA - whether application seeking an order for the child’s return was filed within one year of the child’s removal - whether time commenced to run from the moment the child was removed from America or commenced to run from the moment the child arrived in Australia – whether time is to be calculated according to the time in America or the time in Australia - whether the child is now settled in the new environment - whether the Judge retains a discretion to return the child under the Regulations if the child is found to be settled in the new environment – how should that discretion, if retained, be exercised – ordered that the child be returned to America.- – Family Law (Child Abduction Convention) Regulations 1986
JR and CR are the parents of JDR who was born in country Victoria in Australia in October 2003.
The mother is an Australian and the father an American. They met via the Internet early in 2002. The mother flew to America to meet the father in June 2002, returning to Australia in July 2002. She returned to America in September 2002 and the parties married in Arkansas in November 2002. The mother came back to Australia on 8 December 2002 and then returned to live with her husband in Arkansas on 14 January 2003.
The parties came to Australia on 30 May 2003, returning to the United States on 14 February 2004. On 19 July 2004, without the father’s knowledge or consent the mother left Arkansas taking JDR with her. She boarded a Qantas flight in Los Angeles on 20 July 2004 intending to fly from the United States, arriving in Melbourne on the morning of 22 July 2004. When the father discovered the mother had taken the child from their home he immediately contacted an attorney who filed proceedings in the Circuit Court of White County, Arkansas on 22 July 2004 wherein the father sought custody of JDR.
On 26 July 2004 an order was made ex parte restraining the father and the mother from removing the child from the jurisdiction of the court.
On 13 September 2004 the Circuit Court of White County, Arkansas heard argument on behalf of the parties as to whether or not the court should take jurisdiction. On 3 November 2004 the court dismissed the mother’s request that the court not take jurisdiction finding:
“That this Court has and shall take jurisdiction of the parties and minor child, along with all matters relating to this case. That the minor child and defendant are residents of the State of Arkansas.”
On 13 January 2005 the mother commenced proceedings in the Federal Magistrates Court at Melbourne seeking parenting orders in her favour pursuant to the provisions of the Family Law Act 1975 (Cth). Those proceedings were returnable on 2 May 2005. The proceedings have since been stayed pending the outcome of these proceedings.
The father deposes that in May 2005 he learned of the existence of the Hague Convention on International Child Abduction and of his entitlement to bring an application under it. An application was forwarded on his behalf to the State Department in the United States on or about 24 June 2005.
On 21 July 2005 an application was filed in the Family Court of Australia at Melbourne seeking an order that the child JDR be forthwith returned to the United States of America.
The father’s proceedings in Arkansas seeking custody of JDR have presently been stayed pending the outcome of this application.
Australia is a signatory to and has ratified the Convention on the Civil Aspects of International Child Abduction and implemented its obligations under the Convention via the Family Law (Child Abduction Convention) Regulations 1986. Regulations 14 and 16 of provide (in so far as is relevant to these proceedings):
“14. Applications to court
(1) If a child is removed from a convention country to, or retained in, Australia, the responsible Central Authority…may apply to the court, in accordance with Form 2, for any of the following orders:
(a) an order for the return of the child under the Convention;
…
16. Order for return of child removed to, or retained in, Australia
(1) If:
(a) an application is made to a court under subregulation 14 (1) for an order for the return of a child who has been removed to…Australia; and
(b) the application is made within one year of the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(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…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… Australia; and
(d) the child’s removal to…Australia is in breach of those rights of custody; and
(e) at the time of the child’s removal…the person…:
(i) was actually exercising the rights of custody (either jointly or alone)
…
(2) If:
(a) an application is made to a court under subregulation 14 (1) for an order for the return of a child who has been removed to…Australia; and
(b) the application for the return of the child is made more than one year after the day on which the child was first removed to…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
(ii) had consented or subsequently acquiesced in the child being removed to…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 to which an application for the return of a child is made is not precluded from making an order for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention only because a matter mentioned in subregulation (3) is established by a party opposing return.”
The application raises five issues for me to consider, namely:
1. Immediately prior to JDR being taken by his mother from Arkansas to Australia was JDR habitually resident in the United States of America? If I find that JDR was not habitually resident in the United States of America then the Family Law (Child Abduction Convention) Regulations 1986 have no further application for this family at this time.
2. If JDR was habitually resident in America prior to his removal it becomes necessary to determine whether the day on which the application seeking an order for his return was filed within one year of the child’s removal. It can be seen, having regard to the dates concerned, that this is a critical question in the proceedings. The mother left the United States on a flight scheduled to leave Los Angeles at 11.40pm on 20 July 2004, but which actually took off from Los Angeles International airport shortly after midnight on 21 July 2004. The flight arrived in Australia on 22 July 2004. The proceedings were filed in Melbourne on 21 July 2005.
3. To the extent that it was arguable that the removal took place upon boarding the plane rather than crossing the frontier of the USA, it is necessary to determine whether time commenced to run from the moment the child was removed from the United States or commenced to run from the moment the child arrived in Australia. If time is to be calculated according to the moment when the child boarded the plane to leave the United States then is that time to be calculated according to the time in the United States or the time in Australia? In the event that time is calculated from the moment the child arrived in Australia, which was 22 July 2004, then a document filed on 21 July 2005 would clearly be filed within a year after the day on which the child arrived in Australia. If time is calculated according to the Californian time when the child boarded the plane to leave the United States, namely on 20 July 2004 then a document filed on 21 July 2005 could not be said to have been filed within a year after the day on which the child was removed even if the provisions of s 36 of the Acts Interpretation Act1901 (Cth) apply and time began to run on 21 July 2004.
“36. Reckoning of time
(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.”
If time is to be calculated according to the time in Melbourne when the child boarded the plane in order to leave California, which at that point of time was already well into 21 July 2004 and s 36 of the Acts Interpretation Act applies, then the application is filed within the period required under Regulation 16(1)(a) namely filed within a year after the day on which the child was removed to Australia.
4. If I conclude that the application was filed at more than one year after the day on which the child was removed I need to determine whether JDR is now settled in his new environment as I am still required to make an order for the return of the child unless I am so satisfied.
5. If I determine that the child was settled in his new environment do I still retain a discretion to return the child under the terms of the Regulations?
6. If I do retain a discretion how should that discretion be exercised?
Habitual Residence
For the purposes of this judgment I am content to adopt the proposition of law as set out in the summary of argument on behalf of the mother which reads as follows:
“For the Convention to apply to this matter the Court must be satisfied that the child was a habitual resident of the USA.
As the authorities repeat many times it is not a question of domicile.
In De Lewinsky v Department of Community Services (1997) FLC 92-737 the Full Court of the Family Court adopted the English decision of Re B (minor) (abduction) (No 2) and held that:
‘1.The habitual residence of young children is the same as the habitual residence of the parents and neither can change it without the consent of the other or order of the court.
2.Habitual residence is a place adopted voluntarily and for settled purposes.
3.It requires an appreciable period of time.’”
Reference is also made to the American case of Mozes v Mozes (2001) 239 F.3d 1067 (9th Cir.2001). The case involved an Israeli family that had travelled to the USA to allow their children to experience a year living and being educated there. The mother decided to stay and the father sought a return order under the Convention. The trial Judge found the children had acquired an habitual residence in the USA by the time the application was brought. The appellate court rejected that finding. In an extensive discussion and review of the authorities surrounding the question of parental abandonment of a previous habitual residence the Court said (footnotes omitted):
“Difficulty arises, of course, when the persons entitled to fix the child's residence no longer agree on where it has been fixed--a situation that, for obvious reasons, is likely to arise in cases under the Convention. In these cases, the representations of the parties cannot be accepted at face value, and courts must determine from all available evidence whether the parent petitioning for return of a child has already agreed to the child's taking up habitual residence where it is. The factual circumstances in which this question arises are diverse, but we can divide the cases into three broad categories.
On one side are cases where the court finds that the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move. Most commonly, this occurs when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country. When courts find that a family has jointly taken all the steps associated with abandoning habitual residence in one country to take it up in another, they are generally unwilling to let one parent's alleged reservations about the move stand in the way of finding a shared and settled purpose.
On the other side are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period. In these cases, courts have generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence.
In between are cases where the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration. Sometimes the circumstances surrounding the child's stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely. When this is the case, we can reasonably infer a mutual abandonment of the child's prior habitual residence. Other times, however, circumstances are such that, even though the exact length of the stay was left open to negotiation, the court is able to find no settled mutual intent from which such abandonment can be inferred.
…
Clearly, this is one of those questions of ‘historical and narrative facts’ in which the findings of the district court are entitled to great deference. Feder, 63 F.3d at 222 n.9.
C: Parental Intent and the Circumstances of the Child
While the decision to alter a child's habitual residence depends on the settled intention of the parents, they cannot accomplish this transformation by wishful thinking alone. First, it requires an actual ‘change in geography.’ Friedrich, 983 F.2d at 1402. Second, home isn't built in a day. It requires the passage of ‘[a]n appreciable period of time,’ C v S (minor: abduction: illegitimate child), [1990] 2 All E.R. 961, 965 (Eng. H.L.), one that is ‘sufficient for acclimatization.’ Feder, 63 F.3d at 224. When the child moves to a new country accompanied by both parents, who take steps to set up a regular household together, the period need not be long. On the other hand, when circumstances are such as to hinder acclimatization, even a lengthy period spent in this manner may not suffice.”
The factual dispute between the parties relates to the circumstances in which the parties found themselves in America from February 2004 until July 2004.
It was the mother’s case that the return of the parties to the United States from Australia in February 2004 was for the purposes of a holiday so that the baby could meet and know his paternal grandparents. She said that it was the parties’ intention to return to reside in Australia. She said they had no intention of living in the United States of America.
The father’s evidence was that the parties intended to make their home in the United States, although they hoped to return to Australia “for a visit”.
None of the deponents in the case were cross-examined and I am required to determine the issue as best I can on the material before me. See Gazi and Gazi (1993) FLC 92-341.
Some time after the parties married the mother applied for permanent residency status in the USA. At about the time she fell pregnant with JDR she applied to the United States Department of Justice, Immigration and Naturalisation Service for “an advance parole” which appears to be permission for her to leave the United States of America for temporary purposes without jeopardising her application for permanent residency. In support of that application she lodged a statement which read:
“To whom it may concern,
My name is [CR]. My reason for applying for advance parole is mainly due to my father who has a heart condition and that my parents are getting on in age. I also own my own home and have to attend to it for maintenance reasons and to make sure tenants are properly caring for my house and property. I also have a hairdressing business to finalize closing. I will have the matter of taxes to attend to for my business as well.”
When the family left Australia in February 2004 the mother and the child travelled on return tickets Melbourne/Los Angeles/Melbourne that had been originally booked on 12 November 2003. At that time the return leg booked was 30 October 2004. The Qantas records show that on 21 January 2004 the return booking was altered to 13 May 2004. They show further that on 17 March 2004 the return booking was extended to 25 January 2005.
The father explains his understanding of the travel arrangements as follows:
“We purchased return tickets for the Respondent Mother and [JDR] as we were advised by a travel agent that this would be the cheaper option if we wished to return to Australia for a visit at the end of the year. The travel agent advised us to purchase the return flights for May 2004 and then telephone her shortly prior to the three month date in order to extend the tickets for a year. The Respondent Mother liaised with the travel agent. The Respondent Mother has admitted in her Affidavit sworn on 23 December 2004 that the tickets were initially booked for May 2004. It was my understanding that the Respondent Mother later extended the return flights until December 2004, as we had agreed.”
In her affidavit sworn in the Federal Magistrates Court proceedings the mother said:
“When I travelled to the United States with [JR] on the last occasion I had a return air ticket for [JDR] and I. We were to come back in May however that was extended to the 22 July 2004. I had my last interview for my permanent residence application in Memphis on 7 July 2004. I did not want to attend that interview as I had no intention of ever residing permanently in America. [JR] made me attend.”
I am satisfied on the balance of probabilities that as at July 2004 JDR was habitually resident in America and not in Australia. The factors that lead me to come to that conclusion are:
· The mother applying for permanent residency in the United States and then actively pursuing her application as late as early July 2004;
· The absence of any evidence whatsoever that the father was pursuing a like application to obtain permanent residency in Australia;
· The mother’s extension of the return bookings for her and JDR to come to Australia;
· The continuous residence of the family in the United States from February 2004 to July 2004 with no evidence of any discussion between them of returning to live in Australia.
Whilst each of the parties has filed a plethora of other evidence on which they seek to rely upon to support their respective positions, I find that much of it is either ambiguous or in such conflict that I cannot conclude at a summary hearing which story is more probable than the other.
Being satisfied by reference to the matters referred to above that as at July 2004 JDR was habitually resident in the United States it is clear that his removal by his mother to Australia was in breach of the father’s rights of custody within the meaning of the Regulations.
Was the application brought within a year?
(a)When does time begin to run?
JDR was removed from the United States by a flight scheduled to depart Los Angeles at 11.40pm on 20 July 2004. The parties agree that the flight did not lift off from Los Angeles International Airport until nine minutes past midnight on 21 July 2004. JDR arrived in Australia on 22 July 2004. The application was filed on 21 July 2005.
Regulation 16(1)(a) speaks of an application for an order for the return of a child who has been removed to Australia, which application is to be made within one year of the child’s removal. Does time begin to run from the time the child leaves the United States or the time the child arrives in Australia?
I looked at this question in my earlier decision in State Central Authority v Ayob (1997) FLC 92-746; (1997) 21 Fam LR 567. That case concerned a child that had been wrongfully removed by his mother from America to Malaysia in July 1995. The mother brought the child to Australia in February 1997 and an application was then made to have the child returned to the United States pursuant to the provisions of the Regulations. I needed to determine whether the mother had available to her the defence that the time had expired for an order for mandatory return if she could demonstrate that the child was settled in his new environment. I said:
“The issue in this case is confused by the provisions of reg 16(1) which read as follows:
Subject to subregulations (2) and (3); on application under regulation 14, a court must make an order for the return of a child:
(a) if the day on which that application was fled is less than 1 year after the day on which the child was removed to, or first retained in, Australia; or
(b) if the day on which the application was filed is at least 1 year after the day on which the child was removed to, or first retained in, Australia unless the court is satisfied that the child is settled in his or her new environment.
At first blush, the Regulation appears to have time running from the moment the child actually reaches Australia. In this particular case, this is somewhat crucial to one aspect of the case because it is common ground that the child has now been in Australia only a matter of weeks and that is clearly less than one year after the date upon which the child first entered Australia. If time runs from arrival in Australia, the State Central Authority submits it is unnecessary to consider the issue of whether the child is settled in his or her new environment.
In my view, while such an interpretation accords with a literal reading of the words of reg 16(1), the Regulations have to be read in the context of the Convention and the intention of the nations adopting it. The intention of the Convention is clearly to require the mandatory return of the child within a year of its wrongful removal or retention and to require the mandatory return of the child after the expiration of a year, unless it can be demonstrated that the child has settled in his or her new environment. In my view, the critical date is the date of wrongful removal or wrongful retention and not the date of the appearance in Australia for the first time of the child.
Regulation 2(1C) includes in the definition of a child who is removed from a Convention country to Australia:
A child who is first removed to another country.
The fact that this child went via Malaysia to get to Australia does not make it any the less a child who has ‘been removed to Australia’. However the temporal elements of the phrase ‘less than one year after the day on which the child was removed to … Australia’ need to be read, in my view, with reference to ‘the removal’ and the addition of the words ‘to Australia’ merely give Australia sufficient jurisdiction to ground an application. There does not seem to me to be any capacity for an Australian court to deal with a child who has never been in Australia or who is not currently present in Australia and accordingly the Regulations introduce the reference to a removal ‘to Australia’ to provide a necessary nexus between the wrongful removal or retention and an exercise of power by an Australian administrative or judicial authority.
In those circumstances, this is a child to who reg 16(1)(b) applies, one year having passed since the child’s removal and before an application was made to the Australian authorities concerning that removal. In those circumstances, the second element of Art 12 and reg 16(1)(b) comes into play, namely, whether the court is satisfied that the child is settled in his or her new environment..”
While there have been amendments to the Regulations since my decision in Ayob, I do not view those amendments as materially affecting my reasoning for concluding that the crucial date when time begins to run under the Regulations is the time the child is removed from its place of habitual residence rather than the time it is brought to Australia.
In Murray v Director, Family Services (ACT) (1993) 16 Fam LR 982 at 993; (1993) FLC 92-416 at 80,252–3 Nicholson CJ and Fogarty J (with whom Finn J agreed) referred with approval to the speech of Lord Brandon in Re H (minors) [1991] 2 AC 476 at 500; [1991] 3 All ER 230 at 240 where his Lordship said:
“For the purposes of the Convention, removal occurs when a child, which has previously been in a state of habitual residence, is taken away across the frontier of that state…”
(b)California time or Melbourne time?
Before it became apparent that the actual removal from the USA had not taken place until after midnight on 21 July 2004 counsel for the Central Authority sought to argue that I should calculate the date of removal from the United States according to the date in Melbourne when the removal took place rather than the date in California. When the Qantas flight was scheduled to leave Los Angeles at 11.40pm California time it was already well into the afternoon in Melbourne on 21 July 2004. The filing of the application on 21 July 2005 was, by application of s 36 of the Acts Interpretation Act, within one year of that date.
The question of whether or not time is to be calculated at the place of the event or the forum of proceedings was discussed by Ryan J of the Federal Court of Australia in his decision in Loucas G Matsas Salvage and Towage Maritime Company v Fund in respect of the Proceeds of Sale of the ship Ionian Mariner (1997) 149 ALR 653. There his Honour was concerned with the application of the provisions of s 396 of the Navigation Act 1912 (Cth) that required proceedings to cover the cost of the salvage of a ship to be brought within two years from the date on which the salvage services were rendered. The salvage had taken place off the coast of Chile and had been completed on 23 October 1994 Chilean local time which corresponded to 24 October 1994 EST. The proceedings were filed in Victoria on 24 October 1996. His Honour reviewed Australian, English and United States authorities before concluding that time is appropriately measured according to local time where the event occurs rather the time at some other part of the world.
I am content to apply the logic of his Honour in concluding that the time for determining when the wrongful removal took place was to be measured according to the time at the place where the wrongful removal occurred, namely California.
Had the aircraft taken off from Los Angeles at its scheduled time it would have crossed the frontier within a couple of minutes. In those circumstances the child would have been wrongfully removed from the United States of America on 20 July 2004 and any application that sought to rely upon the provisions of Regulation 16(1) had to be made by 20 July 2005. However, as I have already stated, it is now conceded that the frontier was not crossed until some time on 21 July 2004.
The importance of this finding ought not be underestimated. At the time the Qantas plane was scheduled to leave California, shortly before midnight on 20 July 2004 it was already 21 July 2004 in Arkansas and in much of the United States of America. It would seem unfortunate that those responsible for the commencement of these proceedings, whether the United States Central Authority or the Australian Central Authority or the State Central Authority in Victoria, did not appear to appreciate the critical nature of the date upon which the proceedings were required to be commenced. The ultimate result of this case may turn on good luck rather than good management.
Is the child settled in his new environment?
Had the application been made more than one year after the day on which the child was first removed to Australia I would have been obliged (subject to sub-regulation (16)(3)) to make an order for the return of the child unless I was satisfied that his mother has established that JDR is settled in his new environment.
Whilst there had been some initial uncertainty in the cases as to what was the appropriate test to determine this question, the matter seems to have been put to rest by the Full Court decision in Director-General, Department of Community Services v M and C (1998) FLC 92-829; (1998) 24 Fam LR 178 where the Full Court said at para 91:
“The test, and the only test to be applied, is whether the children have settled in their new environment. That test is to be applied either at the time of the application being made or at the time of trial. It is unnecessary to consider which date is the relevant one in the context of this case given the short period between the two dates.”
See also Director-General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841; (1999) 24 Fam LR 475, Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842; (1999) 24 Fam LR 495.
But expressing the test simply as giving the words their natural meaning does not provide assistance as to what factual situation might lead to reach the conclusion that the child is settled in his or her new environment. Townsend dealt with two children who were aged five and four. The father was an American and the mother an Australian. Early in 1995 after the birth of the second child the parties relocated to America. It was the mother’s case that the relocation was of temporary purposes and that the parties intended to return to Australia “some time in the future”. In May 1997 the mother removed the children to Australia without the father’s permission. After some attempts at reconciliation broke down, proceedings for the return of the children to the United States were commenced in September 1998. The Full Court declined to interfere with the trial Judge’s decision that he was not satisfied that the children ought to be regarded as settled in their new environment even though they had lived in the same premises for over a year and formed friendships and attended kindergarten and pre-school. After reviewing the evidence, Ellis ACJ and Chisholm J in a joint judgment said that they did not find the question an easy one to answer but ultimately concluded that the appellant had not discharged the onus upon her of showing that the children had settled in their new environment. In a separate judgment Kay J asked the question:
“[I]s their ”new environment” simply a geographic locality or does it entail other considerations such as the household in which they live? Is the children’s environment defined by where they live rather than with whom they live? Clearly such considerations would change in emphasis depending upon the age of the child. The essential environment for a babe in arms would most likely be the immediacy of its principal caregiver no matter where that care is provided. The environment for a teenager may well be dependent on other relationships and more material factors including education, housing and the like.”
Present in Townsend’s case was evidence given by the father that the children had expressed significant distress at his absence from their lives.
In Secretary, Attorney-General’s Department v TS (2001) FLC 93-063 Nicholson CJ dealt with a case involving a child 22 months of age who had been wrongfully removed from New Zealand to Tasmania at the age of three months. He said at 110:
“It also seems clear that the onus lies on the mother to establish the proposition that the child is settled in his new environment. I do not regard this as a particularly heavy onus but simply the establishment of an issue of fact determined on the balance of probabilities.”
His Honour found on the evidence that the child was settled in his new environment and declined to follow a line of American authority that suggested that children of such a tender age could not be found to be settled in their environment. His Honour said of the American decisions:
“112. Counsel for the Applicant sought to rely upon several United States authorities that suggested that a child of this age could not be treated as settled in his environment - see Re David S v Zamira S 151 Misc. 2d 630, 636, 574 NYS 2d 429, 4&3 (1991) (where it was held that children 3 and ½ ‘are not yet involved in school, extracurricular, community, religious or social activities which children of an older age would be. The children have not yet formed meaningful friendships.’) This decision was cited with approval in Re Robinson v Robinson (2d Co 1997) 983 Fed Supp 1339.
113. With respect to the courts that made those decisions, I am unable to accept their validity. They seem to involve the addition of a gloss to the meaning of the Regulations which is not supported by anything other than a pre-supposition on the part of the relevant courts that very young children are incapable of settling into a new environment, or alternatively an assumption that the environment of a very young child is so confined that a move of their principal caregiver with them is all that is needed to preserve their environment.”
His Honour then reached the conclusion that the child was settled having regard to the evidence that the child formed part of the family consisting of its mother, her partner and the child’s two half siblings which was a particularly satisfactory and appropriate home environment in which the child had flourished. His Honour was further satisfied that it was unclear that the step-father and the half siblings could move to New Zealand if the child was ordered to be returned there. His Honour was satisfied that the child was well settled into a day care situation where the carers and other children attending were well known to him. He then said:
“121. This child has now been in Tasmania for most of his life. He forms part of a stable and supportive family and has close association with his siblings. I have already summarised the evidence in this regard.
122. It is obvious that if he were to be returned to New Zealand, a New Zealand Family Court judge would almost certainly order his return to Australia, subject to the making of adequate access arrangements. This is not a case where the father is mounting a serious application for custody, nor could he, given the background of this matter. Thus the whole exercise of making a return order under the Convention would in this case be pointless and extremely disruptive to this family.
123. While I sympathise with the position of the father in this case, he is not left without a remedy and there is no reason why he could not make an application in this Court for contact and take advantage of video conferencing technology if his financial position is such as to make it difficult for him to come to Australia. I am conscious that the behaviour of the mother in leaving New Zealand left much to be desired and it is unfortunate that the application under the Convention was not made much earlier. This was in no sense the fault of the father. However, none of these facts alter the present situation.”
What evidence is there in this case that the child is settled in his new environment?”
It is the common evidence of the parents that prior to their return to the United States in February 2004 they had spent time in and around country Victoria where the mother had bought a caravan. In her affidavit filed 29 July 2005 she swore:
“I am and have always been settled in the [the country Victoria] area. I am employed as a Hairdresser there, my friends and my support networks are there.”
She attached an affidavit that she had sworn in the Federal Magistrates Court proceedings on 23 December 2004 where she deposed as follows:
“44.I currently work 2½ days per week as a hair dresser. Whilst I am at work [JDR] is cared for by a carer. I am otherwise in a position to supervise him whilst I am not working. [JDR] is supported from my earnings as a hairdresser and from TAC payments and rent on [my] property.
…
46.[JDR] and I reside in a unit in a caravan park in [country Victoria]. The unit has a large aluminum annex with its bathroom, toilet, etc. It provides adequate accommodation for [JDR] and myself.”
Subsequently in an affidavit filed 29 August 2005 the mother swore:
“19.[JDR] and I currently reside in a three bedroom brick vaneer [sic] home…[JDR] has his own bedroom. The home has all modern amenities and provides adequate accommodation. The yard is well fenced and provides a safe and secure environment for [JDR] to play in.
20.[JDR] and I attend play groups on a very regular basis. [JDR] thoroughly enjoys attending and interacts very well with other children. He is beginning to develop friendships with the children in the playgroups.”
The mother relied upon the evidence of ND who said that she had been a friend of the mother for 10 years. She deposed that she had seen the mother and JDR since their return to Australia:
“…on a very regular basis…She is a devoted mother who attends to all of [JDR’s] needs. It is quite obvious that [CR] and [JDR] enjoy a very close and loving relationship and that [JDR] is very attached to her. [JDR] is a strong healthy child who is obviously well cared for by his mother.”
Finally the respondent relied upon an affidavit by WG, a psychologist in country Victoria who had been retained for the purposes of preparing a report about the mother and child. She said:
“…[JDR] appeared to be a contented, sensitive and loving child who was closely attached to his mother.
…
…[CR] presents as a remarkably devoted and level-headed mother who puts the best interests of her son before anything else in her life. She is very attentive to all his needs and has an excellent understanding of the requirements of a toddler for optimum physical and emotional development. The daily routine she has devised for him is excellent, and she has taken [JDR’s] interests into consideration when balancing out the demands of her work and motherhood. It is clear his needs are her highest priority.
[JDR] responds readily to affection, and the love between mother and child is evident. [JDR] becomes concerned if he loses sight of his mother, and is not comfortable with being minded by more than a select few people. To transfer him into the care of someone with whom he is not thoroughly familiar and comfortable would very likely be a traumatic experience for [JDR].”
Ought I be satisfied on that evidence that JDR is settled in his new environment, being the environment in country Victoria that he has now lived in for the past 15 months?
In their authoritative text The Hague Convention on International Child Abduction, (1999) Oxford University Press, Messrs Beaumont and McEleavy when discussing the underlying principles that led to the inclusion of the return of a child after the expiration of one year said at p 204:
“To return a child after he has spent a substantial period of time away from his State of habitual residence is however very different from the classic Convention case: the summary return in the immediate aftermath of an abduction. Indeed the Chairman of the XIVth Session went too far as to state that Article 12(2) does not sit easily with the other provisions…”
As already discussed in TS Nicholson CJ did not perceive that the establishment of the proposition that a child was settled in his new environment carried a particularly heavy onus. At the other extreme is the Scottish decision of Soucie v Soucie (1995) SC 134 where the Inner House upheld a decision to return a three year old child where the evidence indicated the child had a close relationship with her grandparents, had several friends in the area, was enrolled in a local playgroup, was shortly to go to a nursery school and had been living in the same house with her mother for almost two years. The court posed the question to be answered as being:
“whether the child is so settled in her new environment that the court would be justified in disregarding an otherwise mandatory requirement to have the child returned. This is another way of saying that the interests of the child in not being uprooted is so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child’s future may be determined in the appropriate place.”
Their Lordships went on to say that in considering the proviso to Article 12 what must be clearly shown is that the settlement in a new environment is so well established that it overrides the otherwise clear duty of the court to order the return of the child:
“The facts founded on by the respondent are such as might be expected to be found in any case of a young child living with its mother…[i]t is clear from the facts of this case that if an order is made for the return of the child the mother will go with the child and accordingly that emotional security and stability can be maintained…”
Given the mandate of the majority judgment of the High Court in De L v Director-General, New South Wales Department of Community Services and Anor (1996) FLC 92-706; (1996) 20 Fam LR 390 that in construing the exceptions to the mandatory return provisions under the Regulations no additional gloss should be given to the words used, it is clear that the question posed by the Scottish Court in Soucie, namely whether uprooting a settled child to give effect to the mandatory return provisions cannot help determine the first question that must necessarily be asked, namely whether the child is now settled in its new environment. Rather that question arises if a court finds it has a discretion to return a child that is so settled.
The question is not whether the return of the child will unsettle it, but simply whether the child is so settled.
Giving the words their natural meaning I feel compelled to conclude that JDR is settled in his new environment in the sense that he has adjusted to it and appears to be a happy and contented child. This is not to say that he would not be as equally happy and contented in Arkansas were he there accompanied and cared for by his mother who has been his primary caregiver, to the total exclusion of his father, for the past 15 months. However as I have said the test is not whether he would be unduly unsettled by a forced return.
I find the ease of the application of the test described by Nicholson CJ in TS somewhat disturbing in the case of small babies. The paradox is the younger the child the easier it will be to show that the child is settled and thriving in its new surrounds. The roots it needs to develop to achieve a settled life style are firmly entwined around its principal caregiver. It normally matters little where the child is. Far more important is with whom the child is.
I prefer the caution expressed by Hartmann J of the Hong Kong High Court in AC v PC [HCMP 1238/2004] where his Honour said after deciding to apply the approach to interpreting what was required to be shown as constituting settlement as outlined in Townsend:
“59. …This is not to say, of course, that the burden upon the person seeking to demonstrate settlement under art.12(2) should only be token. The authorities accept that it is a significant burden. But it is a burden which, if it is discharged, may only be accomplished by considering all relevant facts.”
The law reports are replete with cases where the courts have concluded that notwithstanding the passage of considerable time, the settled exception has not been met. Often those cases carry with them an element of concealment and constant upheaval in the child’s life that living in hiding or on the run entails. The earlier English cases required the application of a more stringent test than simply giving the words their plain meaning. Bracewell J’s analysis in Re N (Minors)(Abduction) [1991] 1 FLR 413 has been particularly influential in the development of the jurisprudence. This line of thinking, whilst finding favour with the Full Court in Graziano v Daniels (1991) FLC 92–212; (1991) 14 Fam LR 697 was specifically rejected by the Full Court in Director-General, Department of Community Services v M and C (1998) FLC 92–829; (1998) 24 Fam LR 178 and the subsequent decisions of Moore and Townsend referred to above.
In Aulwes v. Mai, 2002 NSCA 127 the Nova Scotia Court of Appeal (Cromwell, J.A.; Freeman and Roscoe, JJ.A. concurring) expressed the underlying philosophy of the settled exception to return as follows:
“[78] …It is fundamental to the whole scheme of the Convention that the best interests of an abducted child should generally be determined by the courts of the place of habitual residence. As pointed out by Pérez-Vera, there is a strong link between this objective and the settled exception. The exception recognizes that after a child has become settled in a new environment, return should take place only after an examination of the merits of the custody rights being exercised with respect to the child by the courts of the place in which the child has become settled. In short, the settled exception ought to apply where the policy in favour of entrusting the best interests of the child to the courts in the place of habitual residence is no longer a strong one in the circumstances of the particular case.”
The settled exception needs to be read in the context of a Convention aimed at discouraging a unilateral decision being made about a child’s country of residence (usually by one parent) and with achieving a prompt return of the child to the forum best suited to deal with issues surrounding his or her future. In Re HB (Abduction: Children's Objections) (No 2) [1998] 1 FLR 564 Hale J (as she then was) at 568 said:
“… the object of the Hague Convention is set out in its preamble. In essence this is to further the best interests of children by ensuring their speedy return to the country where they have been habitually resident. Once the time for a speedy return has passed, it must be questioned whether it is indeed in the best interests of a child for there to be a summary return after the very limited inquiry into the merits which is involved in these cases…”
If “settled” is there a discretion to return?
Once the year has passed before the application has been filed and the settled exception is established then, notwithstanding the doubts expressed by the Full Court in Director General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841; (1999) 24 Fam LR 475 at para 75 and the decision of the Court of Appeal in Cannon v Cannon [2004] EWCA CIV 1330, I remain firmly of the view that I expressed in State Central Authority v Ayob (1997) FLC 92–746; (1997) 21 Fam LR 567 that the Regulations provide no source of power to enable a court to make a return order.
The Court of Appeal in Cannon expressly rejected my logic, finding that a residual power to return could be found within the provisions of Article 18 of the Convention which provides “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”
Article 18 has no equivalent provision in the Regulations. Its closest equivalent is Regulation 6 that provides:
“These regulations do not affect other powers of, or rights of application to, a court
(1) These Regulations are not intended to prevent a person, an institution or another body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights.
(2) These regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.”
This Regulation makes it clear that giving effect to the Convention is intended to supplement other remedies that might be available to order the return of a child and not replace those remedies. If the intention of the Regulations was to permit a discretion to return to exist even though the settled exception was established, then I would expect to find that power somewhere within Regulation 16(5). It is not surprising that it is absent given that the Regulations are seen as giving effect to the preamble and the objects of the Convention namely to secure the prompt return of children wrongfully removed to or retained in any Contracting State. As discussed at length in Ayob, the compromise reached between those who wanted a short time limit and those who wanted an open ended mandatory return was to opt for the settled exception. If it is established that a prompt and summary return under the Convention is no longer seen as appropriate, the “best interests” considerations that accompany the exercise of local jurisdiction should be left to determine where the case should be heard and what orders should be made to provide for the child’s welfare in all the circumstances.
How would I have exercised the discretion if it existed?
Given that this case does not raise the issue I think it unnecessary to express any concluded view about it especially as I remain steadfast about the correctness of my decision in Ayob. In the event that I am proven to be misguided in that respect, counsel for the State Central Authority urged me to give decisive weight to the underlying principle that the mother should not be rewarded for her conduct in removing the child from his home without the consent of his father or an order of the local court. However it ought be realised that the mother will find life in Arkansas very difficult whilst she awaits the hearing of her anticipated application to remove JDR back to Australia. The father’s promises to me of accommodation for the mother and child may prove to be worthless.
Like Nicholson CJ in TS I assume that the Arkansas Court would sympathetically entertain the mother’s application to relocate with JDR back to her home. It is hard to see any other outcome to these proceedings given the breakdown of this short marriage between spouses from opposite ends of the planet.
Whilst the mother acted in a grossly inappropriate manner in removing JDR from Arkansas, she did not contribute to the Hague application being filed out of time. Her whereabouts were known. She simply got on with her life caring for JDR. None of the delay was attributable to her. To expect her to return now to a situation where she can realistically expect no financial or emotional support could be seen, on balance, to be inconsistent with promoting JDR’s best interests.
I am conscious that the failure to order his return would impede any chance he has of beginning to develop a proper relationship with his father but, as important as that must be for him, the difficulties that the return scenario created for his mother might well have outweighed the benefits he would undoubtedly gain if his parents could learn to cooperate in his upbringing.
These considerations are however academic, given that this is a case (albeit by only about ten minutes) that requires a mandatory return of JDR to the USA.
Order
1. That JDR born October 2003 be forthwith returned to the United States of America.
2. That there be liberty to either party to apply for directions necessary to give effect to the return order, it being noted that the mother intends to accompany the child and may require a further visa in order to re-enter the United States of America.
The Court notes that the child’s father has indicated that he will not attempt to interfere with the respondent mother’s care of the child pending further order of a court of competent jurisdiction in Arkansas, that he will provide suitable housing for JDR and his mother pending any proceedings in Arkansas and that he will be responsible for any necessary airfares for JDR.
I certify that the preceding 67 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 4th day of November 2005
Associate:
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