State Central Authority & Handbury
[2019] FamCA 668
•22 August 2019
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & HANDBURY | [2019] FamCA 668 |
| FAMILY LAW – CHILD ABDUCTION – where child wrongfully retained in Australia – repudiatory retention. FAMILY LAW – CHILD ABDUCTION – habitual residence – where the habitual residence in Australia was acquired prior to date of repudiatory retention. FAMILY LAW – CHILD ABDUCTION – where acquiescence alleged. FAMILY LAW – CHILD ABDUCTION – conditions to return – essential features. FAMILY LAW – CHILD ABDUCTION – consequences of an exception to return being made out (which it was not). FAMILY LAW – CHILD ABDUCTION – where court satisfied that all jurisdictional facts were proven, where no acquiescence was found to have occurred – where child ordered to be returned to the United Kingdom twenty-one months after arriving in Australia. |
| Brussels II Regulation Children Act 1989 (UK) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Evidence Act 1995 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law Act 1975 (Cth) |
| A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening)[2013] UKSC 60 AR v RN (Habitual Residence) [2015] UKSC 35 Commonwealth Central Authority & Cotter [2016] FamCA 209 De L v Director-General, NSW Dept of Community (1996) 187 CLR 640 Department of Health and Community Services, State Central Authority and Casse [1995] FamCA 71 Director General, Department of Families, Youth & Community Care &Thorpe (1997) FLC 92-785 H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 HZ and SCA [2006] FamCA 446 In re F (A Minor) (Child Abduction) [1992] 1 FLR 548 In re H (Children) [2015] 1 WLR 863 In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 In re LC (Children) [2014] UKSC 1 In re R (Children) [2015] UKSC 35 In the matter of C (Children) [2018] UKSC 8 In Proceedings Brought by A ((2009) Case C-523/07) LK v Director-General, Department of Community Services [2009] HCA 9 Mercredi v Chaffe ((2010) Case C-497/10 PPU) MW v Director General, Department of Community Services (2008) 244 ALR 205 Re A (Minors)(Abduction: Custody Rights) [1992] Fam. 106 Re AZ (A minor) (Abduction: Acquiescence) [1993] 1 FLR 682 Re B (A Child) (Habitual Residence: Inherent Jurisdiction)[2016] UKSC 4 Re H (Minors) [1998] AC 72 Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 Re M (Minors) [1993] 1 FLR 495 Re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819 SCAvSigouras (2007) FamCA 250 TB v JB [2000] EWCA Civ 337 W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 Wenceslas and Director-General Department of Community Services [2007] FamCA 398 Zotkeiwick & Commissioner of Police(No.2) (2011) FLC 93 – 472 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Handbury |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Murray |
| FILE NUMBER: | MLC | 122 | of | 2019 |
| DATE DELIVERED: | 22 August 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 22 - 24 May & 31 May |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Greenham |
| SOLICITOR FOR THE APPLICANT: | Department of Health and Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Ms Burt |
| SOLICITOR FOR THE RESPONDENT: | KHQ Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bonney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders (Pronounced on 27 August 2019)
IT IS ORDERED BY THE COURT THAT:
The father be and is hereby joined as a party to these proceedings with the purpose of being bound by, and giving effect to, this order which:
a)As between the applicant State Central Authority and the mother and the independent children’s lawyer is made pursuant to Regulation 15 of the Family Law (Child Abduction Regulations) 1986:
b)As between the mother and the father and the independent children’s lawyer is made pursuant to Section 111CD(1)(b)(i) of the Family Law Act 1975.
The father file a Notice of Address for Service forthwith.
IT IS REQUESTED that the Independent Children’s Lawyer (who is appointed in the Hague return proceedings) also be appointed in the parenting proceedings between the mother and the father.
The Application of the State Central Authority filed on the 15 February 2019 be granted, and the Child Z, female, born … 2013 (“the Child”), be returned to the United Kingdom pursuant to Regulation 16 (1) of the Family Law (Child Abduction Convention) Regulation 1986, the United Kingdom being the child’s state of habitual residence.
BY CONSENT (by way of machinery provisions to implement the return ordered by the Court)
Pending the child’s departure from Australia for the return to the United Kingdom, the mother MS HANDBURY and the father MR HANDBURY, their servants and / or agents continue to be restrained and an injunction issue restraining them, their servants and / or agents from causing or permitting or suffering the child:
a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provision of such order;
b)to be removed from the State of Victoria; and/or
c)to reside at any place other than her present residential addresses or any other residence at which the Applicant has agreed that the child may reside;
d)attend at any school or educational institution other than the school or institution at which the child is enrolled; and
e)to permitting or suffering the child to be examined by a social scientist or like professional for the purpose of eliciting evidence for the purpose of these proceedings.
Subject to paragraph 6(b) of this order the Father accompany the child back to the United Kingdom between 28 and 29 September 2019, and for that purpose:
a)The Father purchase tickets for the Father and the child, travelling by air from Melbourne, Australia, to London, England, United Kingdom with any stop-overs to be in countries that are signatories to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
b)The father provide a copy of the tickets for him and the child and details of the itinerary to the Applicant State Central Authority, the mother and the Independent Children’s Lawyer, by 5pm on the 6 September 2019 and, after so doing, be and is hereby restrained from causing permitting or suffering the reservations to be altered without the consent of the Applicant State Central Authority or order of the court;
c)If the Father has complied with the paragraph 6(b) of this Order above, the passports of the child currently held by the Registrar of the Family Court of Australia pursuant to paragraph 5 of the Order made on the 20 February 2019 be released to the Father upon the request and presentation by him of this Order and the letter of consent from the solicitors of the State Central Authority. It is sufficient confirmation of compliance with this Order for the State Central Authority solicitors to provide a letter to that effect.
The Mother reimburse half of cost of the child’s flight from Melbourne to London to the Father, such payment to be made by 25 September 2019.
Paragraph 3 of the Orders made by the Honourable Justice Bennett on 20 February 2019 (being the order placing the child Z, female, born … 2013 on the Airport Watch List) be discharged upon presentation of the child for boarding the flight to the United Kingdom as advised to the officer of the Central Authority AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the said child from the Airport Watch List upon presentation of the child for boarding.
Paragraph 5 of the Order made by the Honourable Justice Bennett on 20 February 2019 (being the order for the surrender of the passport of the child), be discharged and the Father be at liberty to collect all and any passports upon presentation of this Order.
A sealed copy of this Order be provided to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Police Forces and services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
Upon the arrival of the child in the United Kingdom pursuant to this Order, the Father cause the child’s British passport to be delivered to Ms A of B Solicitors in City C, for safekeeping pending further order of the competent court in the United Kingdom and the child’s Australian passport be delivered to the wife’s solicitor in England on the same basis.
Within 48 hours of the arrival of the child in the United Kingdom, the father advise the independent children’s lawyer in writing or electronically that the child has entered the United Kingdom safely and on the next working day the independent children’s lawyer notify the Applicant Central Authority and the mother that the child has been returned and the date upon which they entered the United Kingdom and the applicant Central Authority notify the Central Authority in the United Kingdom accordingly.
There be liberty to the parties to apply on short notice in relation to implementation of these Orders including the obtaining of enforcement orders in the United Kingdom pursuant to Chapter IV of the Hague Convention of October 1996 on Jurisdiction, Application Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).
ON THE ORAL APPLICATION OF THE FATHER FOR ORDERS AS BETWEEN HIMSELF AND THE MOTHER, IT IS FURTHER ORDERED BY THE COURT:
Leave is granted to the Father to make an oral application for the parenting orders and I relieve each party with compliance with the Family Law Rules 2004 in relation to filing and service of documentation.
Upon the child’s return to the United Kingdom and until orders are made by a court in the United Kingdom;
a)The child live with the parents in City D as follows:
i)From the date of return of the child to the United Kingdom until 5:30pm on 2 October 2019 with the father;
ii)From 5:30pm on 2 October to 6pm 5 October 2019 with the Mother;
iii)From 6pm on 5 October 2019 to 5:30pm 9 October 2019 with the Father;
iv)From 5:30pm 9 October 2019 to 6pm 12 October 2019 with the Mother;
v)From 6pm 12 October 2019 to 5:30pm 16 October 2019 with the Father;
vi)From 5:30pm 16 October 2019 to 6pm 19 October 2019 with the Mother;
vii)From 6pm 19 October 2019 to 5:30pm 23 October 2019 with the Father;
viii)From 5:30pm 23 October 2019 to 5:30pm 30 October 2019 with the Mother.
c)The child live with each of the Mother and Father as follows:
ix)From 30 October 2019 for the first 4 weeks of an 8-week rotating cycle, commencing upon the child’s return to the UK, as follows:
A.With the Father for the 3 nights and each week thereafter;
B.With the Mother, for the remaining 4 nights and each week thereafter;
x)For the fifth week to eighth week of the 8-week rotating cycle, commencing the day following Z’s time with the Father pursuant to paragraph 15(b)(B) herein as follows:
A.With the Father for the first 4 nights and each week thereafter;
B.With the Mother for the following 3 nights and each week thereafter;
d)Each parent do all things required to secure a place at E Primary School and the F School without prejudice to their respective rights to seek a determination of which school the child is to attend from a Court in the United Kingdom.
e)Upon the return of the child to the United Kingdom the mother MS HANDBURY and the father MR HANDBURY, their servants and/or agents from causing or permitting or suffering the child to be removed from the United Kingdom without written consent of the other parent.
The parents do all acts and things necessary to have this Order rendered enforceable in the United Kingdom pursuant to the 1996 Convention and for that purpose, request that there be direct judicial communication to facilitate a declaration of enforceability or registration of the order for the purpose of enforcement.
Each parent and any legal practitioner ordered to represent the interests of the child Z in the United Kingdom be and is hereby at liberty to use any documents from these proceedings in the proceedings concerning Z in the United Kingdom.
Upon the court being notified by the State Central Authority that the child has safely arrived in the United Kingdom:
a)the independent children’s lawyer appointment be discharged; and
b)the mother’s initiating application for parenting orders filed 8 January 2019 in the matter of Handbury and Handbury File number (P)MLC122/2019 be and is hereby dismissed.
Otherwise the application of the State Central Authority filed 15 February 2019 be and is hereby dismissed.
If, after the return of the child to the United Kingdom, there is a reason for either parent to seek parenting orders in this Court, the parents (or either of them) may contact my Associate – email … – to have any application made returnable before me as soon as practical for directions and in the event that I am reasonably available.
IT IS DIRECTED:
That the minute of orders as amended be marked Exhibit “A” and remain on the Court file.
IT IS NOTED:
A. That the parenting orders contained in paragraph 15 of this Order are urgent orders within the meaning of Article 11 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation of Parental Responsibility and Measures for the Protection of Children and it is accepted by the parents that they will be recognised in the United Kingdom accordingly.
B.The mother agrees that Z should return to the UK in the company of the Father as she would ordinarily be in his care on 28/29 September and the Mother does not wish to disrupt the usual pattern of care.
C.The Father’s address at G Town is agreed between the parents that it falls within the definition of City D for the purpose of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Handbury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 122 of 2019
| STATE CENTRAL AUTHORITY |
Applicant
And
| MS HANDBURY |
Respondent
And
INDEPENDENT CHLDREN’S LAWYER
Contents
Orders (Pronounced on 27 August 2019)
REASONS FOR JUDGMENT
Introduction
Evidence
Onus of proof
Standard of proof
Findings of fact
Credit and impression of the parents
The Mother
The Father
Preference for one parent’s evidence over the other
Relevant family history
Parents early realtionship
Parents’ early life in England
Mother receives offer of employment in Australia
Father’s visa applications
Disposal of household goods and other effects in anticipation of travelling to Australia
Various representations to third persons about duration of the move to Australia
Terms of mother’s employment in Australia and re-employment thereafter
Negotiation of a car lease for a three year term
Family arrives in Melbourne
Finding about agreement to remain in Australia for two years (as alleged by the applicant
Events in February 2018
Events after 16 February 2018
Separation
The evidence of the Family Consultant
Application of the law to the facts of this case
Jurisdictional facts (pre-requisites to summary return)
Habitual residence
Repudiatory retention
Acquiescence as an exception to mandatory return
Matters which would inform the exercise of the court’s discretion to refuse return upon one or more exceptions to return being made out (which is not the case here)
Conditions to return
Consequence of failure to comply with a condition of return
Enforceability of conditions to return
Orders
Conclusion
REASONS FOR JUDGMENT
Introduction
The child Z’s parents told her that the family was going to Australia for an adventure and then they would return home to City D. Z and her parents arrived in Australia as an intact family on 5 October 2017 by which time Z was five years old. From February 2018 the mother told Z that “we live [in Australia] now”[1]. The mother attributes these statements to the father as well but the father maintains that he has only ever referred to the family’s time in Australia as the adventure he believed it would be. The father wants the mother to adhere to what he says was their agreement to spend only two years in Australia and to return to the United Kingdom in or shortly after September 2019. The mother says that her understanding about remaining in Australia permanently was mutual and in any event, the father has acquiesced to Z remaining in Australia.
[1] Mother’s affidavit affirmed 8 March 2019 [116].
At the father’s request and by application filed on 15 January 2019, the applicant State Central Authority (“SCA”) seeks the return of Z to the United Kingdom (“UK”) pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). It is the Regulations rather than the Convention which have force of law in Australia.
The Regulations implement the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) which entered into force between Australia and the United Kingdom on 1 January 1987. I will refer to the father as “the requesting parent” or the “left behind parent” or “the father”. I will refer to the mother and father jointly as “the parents” because the father is not a party to the proceedings.
On 20 February 2019 I requested that an Independent Children’s Lawyer (“ICL”) be appointed to represent Z’s interests. In due course, Ms Annette Murray was appointed and has represented Z’s interests within the confines of these forum selection proceedings. It is a different role for the Independent Children’s Lawyer as the outcome of Hague return proceedings are not preconditioned on the subject child’s best interests
The SCA relies on the concept of repudiatory retention which I will discuss in detail later in these reasons. In short, the SCA’s case is that the parents had agreed to live in Australia for two years, ending in September 2019, but that on 16 February 2018, the mother communicated to the father that she did not want to return Z to the United Kingdom at the expiration of two years.
The respondent mother opposes Z’s return to the UK on several bases. They are:
f)the Regulations do not apply because the applicant SCA has not established certain jurisdictional facts[2] which are necessary elements of a wrongful retention within the meaning of r.16(1A) of the Regulations. In particular, that
i)Z was not habitually resident in the UK immediately prior to the alleged repudiatory retention because, by 16 February 2018, Z had become habitually resident in Australia;
ii)there was no repudiatory retention by the mother as at 16 February 2018 because;
A.there was no agreement that the family would return to the UK at the expiration of two years;
B.if, contrary to the mother’s case, I find that the family’s stay in Australia was for a finite period (of two years), there was no express act of repudiation by the mother as at 16 February 2018;
g)if the threshold issues are satisfied and this is a case to which the Regulations do apply, Z should not be returned to the UK because subsequent to 16 February 2018, the father had acquiesced to Z being retained in Australia within the meaning of r.16(3)(a)(ii) of the Regulations.
[2] A jurisdictional fact is “the criterion, the satisfaction of which enlivens the power of the decision maker”. See Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135.
A finding against the SCA in relation to a jurisdictional fact, as described in subparagraph 6(a), above is dispositive and the application would fail as it must.
If I find that the mother has wrongfully retained Z in Australia, albeit by way of a repudiatory retention, I am mandated by r.16(1) of the Regulations to order that Z return forthwith to the UK; subject to the mother establishing that the father has acquiesced to Z remaining in Australia.
A finding that the father has acquiesced to the retention of Z in Australia, as the mother alleges, gives rise to a discretion for the court to refuse return. The matters which inform the exercise of that discretion are not identified in the Regulations (or in the Convention). In De L v Director-General, NSW Dept of Community (1996) 187 CLR 640 at 661 it was held that “the discretion is unconfined, except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous”: see Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Z’s welfare would be a matter properly taken into account when exercising that discretion.
Interestingly, if the application had been filed one day later, it would have been an application to which r.16(2) of the Regulations applies. It would have been open to the respondent mother to seek to establish that Z has settled in her new environment in Australia. However, this application was filed on 15 February 2019, (which is within one year of the alleged wrongful retention on 16 February 2018). Accordingly, issues of:
a)whether or when Z ceased to be habitually resident in the UK on or after 16 February 2018; and/or
b)whether or when Z became settled in Australia on or after 16 February 2018 –
do not fall for determination by me otherwise than as a factor which I can take into account in the exercise of any resultant discretion to refuse to return arising from the acquiescence exception being made out under r.16(3)(a)(ii) of the Regulations. Even though the family has been in Australia since October 2017, Z’s integration into life in Australia since 16 February 2018 is not a primary consideration.
Having heard the evidence and being assisted by the written outlines of argument[3] and oral submissions of counsel, I am satisfied that Z was wrongfully retained as alleged by the father and that the mother’s allegation of acquiescence is not made out. Accordingly Z must be returned to the UK.
[3] Applicant’s Outline of Submissions marked exhibit “SCA5”; Respondent mother’s Summary of Argument filed 20 May 2019; Independent Children’s Lawyer’s Case Outline filed 21 May 2019.
Evidence
At trial the State Central Authority relied upon the following evidence:
a)Form 2 filed 15 February 2019;
h)Affidavit of Mr J sworn/affirmed 15 February 2019;
i)Affidavit of the Father affirmed 5 February 2019;
j)Affidavit of Ms A sworn 7 February 2019;
k)Affidavit of Ms H Handbury sworn 31 January 2019;
l)Affidavit of Ms L sworn 31 January 2019;
m)Affidavit of Mr K sworn 30 January 2019;
n)Affidavit of Mr M sworn 31 January 2019;
o)Affidavit from Mr N sworn 31 January 2019;
p)Affidavit of Ms O affirmed 21 March 2019;
q)Affidavit of the Father affirmed 21 March 2019;
r)Affidavit of Mr P affirmed 19 March 2019;
s)Affidavit of Ms Q sworn 30 January 2019; and
t)Case Summary filed 24 May 2019.
At trial the mother relied upon the following evidence:
a)Form 2A filed 8 March 2019;
u)Affidavit of the mother sworn/affirmed 8 March 2019;
v)Affidavit of Mr R sworn/affirmed 7 March 2019;
w)Affidavit of Mr T sworn/affirmed 6 March 2019;
x)Affidavit of Mr U sworn/affirmed 7 March 2019;
y)Affidavit of Ms V sworn/affirmed 7 March 2019;
z)Affidavit of Mr W sworn/affirmed 6 March 2019;
aa)Affidavit of Ms X sworn/affirmed 8 March 2019;
bb)Affidavit of Ms Y sworn/affirmed 7 March 2019; and
cc)Case Summary filed 20 May 2019.
At trial the Independent Children's Lawyer relied upon a Case Summary filed 21 May 2019 and the Regulation 26 Family Report prepared by Ms AA dated 9 April 2019. The Court’s Child Dispute Services Section comprises expert psychologists and social workers with a high level of training and experience in child development and parenting after separation and divorce. Family Consultants, such as Ms AA, are employed directly and exclusively by the Court and Child Dispute Services is located within the Registry. Regulation 26 provides that in proceedings under the Regulations, such as these, the Court may direct a Family Consultant to report to the Court on such matters relevant to the proceeding as the Court considers appropriate. This service is provided free of cost to the parties.
Ms AA was cross examined by counsel of each party but not to the extent of being meaningfully challenged. I found her observations to be skilful. Her evidence was insightful and helpful and I accord it weight, particularly in my deliberations on habitual residence and the extent to which Z is likely to have assumed habitual residence in Australian as at February 2018.
It is a fact rich case and the parties have invested both financially and emotionally in a high degree of preparation. There are hundreds and hundreds of paragraphs and sub-paragraphs of affidavit evidence and there were four days of oral evidence and cross examination of the parents. This was not run as a summary proceeding and, unfortunately, this decision is delivered far outside the 42 days to which a court aspires. I commend counsel and all parties for restricting their client’s case to forum issues and not straying into best interests considerations except where appropriate.
Onus of proof
The applicant SCA bears the onus of proving the jurisdictional facts which characterise a retention as “wrongful”. The respondent does not concede that Z has been wrongly retained.
The respondent mother bears the onus of proof in relation to whether the exceptions relied upon by her are made out, in this case, the exception is acquiescence.
On the separate issue of the exercise of any discretion to refuse to return Z to the United Kingdom, which arises in the event that an exception to return is found to exist, the parties bear the onus of proof for the result for which they contend.
Standard of proof
As required by section 140 of the Evidence Act 1995 (Cth) I will apply the balance of probabilities as the standard of proof.
Findings of fact
A statement of fact is a finding of fact.
Credit and impression of the parents
The only witnesses cross-examined during the hearing were the father, the mother and the Family Consultant. No other witness was required for cross-examination.
I accept that each parent gave evidence in accordance with what they believed to be the truth. I do not consider that either intended to mislead the Court. The disparity in their recollections reflects a lack of communication, if not a degree of miscommunication, which existed between them prior to leaving the United Kingdom and endured through the trial. Each parent seems to have their own reality in which the thoughts and feelings of the other parent do not feature.
The evidence in these proceedings is nuanced. First, it is confined to issues relevant to forum issues under the 1980 Convention rather than to the best interests of Z. The parents are giving evidence about matters peripheral to their daughter’s welfare. Without any capacity to anchor their evidence in the best interests of their daughter, each parent is self-focused and presents with a high degree of certainty that they are right and the other parent is wrong. I am not at all surprised that the parents have different versions of events. I don’t find that either is dishonest. They come to issues from different directions and with different motivations. From their self-righteous vantage points I suspect that each believes their own story to be correct. Second, across the issues of repudiatory retention and acquiescence, I need to assess objective and subjective elements of each parent’s thinking. This is hardly the stuff of summary proceedings. I assess them as having communicated selectively with one another for a considerable period prior to leaving United Kingdom and most certainly for all the time after they arrived in Australia. It is ironic that the parents’ lack of communication has produced an excessive amount of evidence in this case.
The Mother
Ms Burt submitted that the mother’s evidence in the witness box was consistent with her affidavit and that she showed an ability to make concessions that went both against her interest and were difficult due to them being personal and potentially controversial for her. Ms Burt gave the example of the mother’s concession that Z misses her English cousin WW as a concession that goes against her interests, and the account she gave of her new relationship with her colleague as an example of a concession that caused the father to become highly distressed and emotional during the proceedings. Ms Burt submitted that the mother was frank in her answers and did not make attempts to avoid questions.
I observed that the mother’s evidence was fluent and reflected a high degree of preparation. Indeed, Ms Burt’s preparation of the case was meticulous and her presentation was strategic. The mother and father are clearly different personalities. They are also at different stages of acceptance about the breakdown of their marital relationship and their relationship as parents. The father is still reeling in shock. By comparison, the mother presents as somewhat clinical. My impression is that she has had a lot longer to come to terms with the failure of the marital relationship than has the father.
The Father
Ms Burt submitted that in contrast to the mother, the father was “at times dogmatic and defensive.”[4] It was submitted that the father on occasion struggled to answer direct questions put to him and used it as an opportunity to criticise the mother. There is force in Ms Burt’s submission.
[4] Transcript in Confidence, 31 May 2019, p. 256, 9.
I observed that the father was hesitant in giving his evidence. He is clearly shaken by what he perceives is a fundamental deception by the mother. He has lost confidence in the mother and has lost confidence in himself. He appeared to me as someone who was insecure in his own judgement and therefore very deliberate in the manner in which he gave evidence. My impression is that the father’s recollections are intact and reliable but that he had an unwillingness to make usual assumptions about mundane things. The record of the father’s evidence in relation to the sale of household goods is replete with qualifications and doubts. He could not make fairly regular assumptions about the mother’s behaviour and actions. I accept the submission of counsel for the State Central Authority that the father was trying to be as truthful as possible and, in doing so, some of his evidence became “a little bit absurd”. Ultimately he made appropriate concessions but they were a long time coming.
Preference for one parent’s evidence over the other
I conclude that the mother has been calculating at some level since 2016 to relocate the family to Australia in circumstances which she could convert to a permanent relocation. In spite of the mother presenting more impressively as a witness than the father, to the extent of any conflict, I place more reliance on the father’s version of events then I do on the mother’s version of events. That is on his recollection of what he witnessed, what was said or done and events in which he took part. I do not consider that the mother has been frank about her motivations and aspirations of coming to or remaining in Australia. She has been living at some level strategically since she became aware of the offer of employment in Australia.
As to all of the witnesses on which the father relies and who were not required for cross examination, their statements to the effect that the mother told them that the family would return in two years were not challenged by the mother. I do not accept the mother’s general statement to the effect that it was easier to tell everyone that they would return in two years as opposed to discussing what changes in circumstances would cause the family to remain longer in Australia.
Relevant family history
Parents early relationship
The mother is 40 years of age and was born in Australia. The mother obtained UK citizenship in 2012. The father is 38 years of age and was born in the UK. He is a citizen of the UK and holds permanent residency in Australia.
The parents first met in 2002 at a conference in Country CC. The parents then met again in Country CC in 2003 and commenced a relationship. The relationship was initially long distance as the father lived in England and the mother lived in Country CC. They saw each other around twice a month. In 2004 the mother moved to City BB in the UK where the father was living and working. The mother rented a room in a share house for 6 months before she moved into the father’s apartment in early 2005.
The parents married in Melbourne, Australia in 2006. The mother deposes that the parents had been on a holiday in Australia when the mother’s visa to return to the UK was rejected. The parents discussed options such as getting married and the mother applying for a UK spousal visa, moving to Australia with the father who could apply for an Australian visa, and moving to a different European country and they both apply for a visa. The parents decided to marry in Melbourne and the mother’s spousal visa was accepted in the UK. The mother deposes that the father’s family “were not initially supportive”. The father in reply deposes that his family “were initially shocked” about the decision to marry in Australia because they would not be able to attend the ceremony and they wanted to be a part of the celebration. The parents had a “blessing ceremony” in the UK upon returning, that the father’s family attended. The parents returned to the UK after the wedding and moved towns in December 2006 to DD Town.
Parents’ early life in England
The parents travelled to Australia on nine occasions, with a trip taken each year from 2005-2012. The mother also came to Australia for an additional three weeks in 2007 for Christmas with her family. The maternal grandmother, Ms Y, and some of the maternal aunts and uncles visited the parents in the UK in July 2008, July 2010 and October 2012.
In April 2009, the parents moved to City D. In September 2009, they purchased a property at E Town, City D (“the City D property”).
In 2010/11 the parents travelled for 10 months around Europe and to Australia whilst the mother was in between jobs as she had been “burned out from [her] job”.
In April 2012 the mother was granted her United Kingdom citizenship.
The mother deposes that in 2012, whilst pregnant, she spoke to the father’s mother and sister about her birth plan as she was considering giving birth in Australia because she had more trust in the Australian health care system. The mother describes how the father’s mother began to well up and “bought her fist down on the kitchen bench top saying words to the effect “this is your home”. The mother deposes that she felt pressured by this and I accept that is the case. The mother alleges that also around this time she commented to the father’s family about one day moving to Australia and needing to pack her sentimental things with her. She claims this was “not well received” by his family and so she did not mention it again. My impression is that the mother felt overwhelmed by the expectation of the father’s family that her life would be in the UK to the exclusion of anything more than holidays to Australia. The father’s evidence is that he has no knowledge of the discussion about the mother’s birth plan but denies that the mother made such comments in front of his family or that there was such a reaction from them.
Leaving aside documentary evidence, oral evidence of protagonists in litigation is merely their best recollection. The father may not have heard the comments which the mother recollects or understood the import of them. I am comfortable to conclude that the mother’s appreciation of the firm expectations of father’s family, vis a vis her residing permanently in England, was soundly based. They would not have a bar of the father, mother and eventually the baby moving permanently to Australia.
Z was born in the UK at a hospital in City D in 2013 and is currently 6 years of age. Z is a dual British and Australia citizen and has passports from both countries. The mother took maternity leave from the middle of January 2013 to the end of August 2013. The father took paternity leave from September 2013 to December 2013.
The parents travelled to Australia in 2013 during the father’s paternity leave for 4 months. The trip was conducted via a “house swap”. The mother deposes that this arrangement allowed the parents to become “established in daily life in Australia.” This included taking Z to baby music classes and swimming classes.
After returning to the UK, the mother deposes that she and the father had a serious discussion about moving to Australia. The mother states that she told the father that she “could not commit to living in the United Kingdom forever and [the father] told me that we would live in Australia for an extended period at some point”. The mother’s evidence is that the father’s family were not supportive of such a move and that the father would not go against his family’s wishes. The father in reply denies that he had this discussion with the mother after returning to the UK. The father admits that his family “would not have been happy” if the parents permanently relocated. However, he deposes that they had discussed “short trips to Australia” and accepts that he said he “would stay in Australia for an extended period at some point in my married life” but considers an “extended period” to be similar to that which he took whilst on paternity leave.
On 27 August 2013 the parents had Wills drawn with the maternal aunt, Ms R, appointed to be Z’s guardian, should both parents pass away. The maternal aunt appointed lives in Victoria, Australia.
In May 2014, the mother was employed by “Company EE”, “a company based in Europe”. The mother worked “a 0.75 equivalent full-time basis position from May 2014 until September 2017” when the parents moved to Australia. The mother was the only person from the UK to work for Company EE. The father deposes in reply that the mother travelled for work to the United States of America, Country CC, Country FF and Country GG during the period of 2014 to 2017.
The maternal grandmother and potentially some of the maternal aunts and uncles came to visit the parents in the UK in July 2014.
In mid-2015, the parents travelled with Z to Australia for the second time for approximately 5 weeks. Z was 2 years and 5 months old.
In 2015 the mother suffered a miscarriage. The parents continued to try for a baby until November 2016 when the mother says they decided to stop so that a possible pregnancy would not conflict with their move to Australia. The mother deposes that the parents intended to resume trying to conceive in Australia. The father denies that the parents had an agreed plan to resume trying to conceive or that they were moving to Australia on a permanent basis.
Mother receives offer of employment in Australia
The mother’s evidence is that, in 2016 she was verbally offered a relocation package to Australia with Company EE GmbH Group. She was to commence in 2017 as a Manager of another company, Company HH, in Australia, as part of a joint venture with Company EE. The father’s evidence on this point was that he had no knowledge of what verbal offer was made to the mother but that she had told him that the Australian placement was a temporary role for two years. The father deposes that the mother said that she had secured employment back in the UK with Company EE GmbH after the two years which would enable the family to return to the UK.
Ms Y, the maternal grandmother deposes that in July 2016 the parents via FaceTime called her and Ms YY, the mother’s sister, whilst they were on holiday. She says that the parents told them about the mother’s position in Australia and that they intended to be in Australia for 2 to 3 years but that their move was “open ended with no set return date.” Ms Y says that the parents told her and Ms YY that if the mother became pregnant whilst in Australia that they would remain for longer.
The maternal grandmother, maternal uncle Mr Y, and maternal aunt Ms YY visited the family in the UK August 2016 for the parents’ tenth wedding anniversary. Together they all visited Eastern Europe for a holiday.
On 5 September 2016, Z began attending three-year-old kindergarten at Town II, UK. Z attended for three afternoons per week and was looked after by the mother on the afternoons she was not at kindergarten.
Father’s visa applications
In early 2017, the parents commenced the father’s visa applications for Australia. The father submitted a Form 47SP, being an application for a Partner Visa Outside of Australia, which comprises of both a subclass 309 visa (being a provisional visa) and subclass 100 visa (A permanent partner migrant visa). This visa was applied for as the parents were married and they would “would not have wait for 2 years for the provisional visa to be re-assessed as a partner (migrant) visa”. The visas were granted and required no further future assessment. The father deposes that he did not know that that he could have just applied for the provisional visa. He was under the impression that he needed both visas to be eligible to work in Australia for two years as there were no other visas that allowed him to do so.
Importantly, the father states that the mother was responsible for formulating his application as she set up the required “immi” online account, being the Department’s visa application portal, which was attached to her email address and he did not have the password for the “immi” account. The following documents were submitted in support of the father’s visa applications:
a)His own statement;
dd)A joint statement as to the nature of the parents’ commitment to one another;
ee)A joint statement as to the social context of the parents’ relationship;
ff)A joint statement as to the nature of the parents’ household;
gg)Statutory declarations from several Australian citizens; and
hh)Supporting documentation including certificates of marriage and citizenship, evidence of the father’s identity, evidence of police and health checks.
The mother relied on the father’s statement as evidence of the father’s intention to move to Australia permanently (“M-1” pg 23-4). The final paragraph reads:
“Having spent the first 14 years of our relationship in Europe [Ms Handbury] and I have decided that we would now like to move to Australia. Our daughter [Z] is an Australian citizen and we want her to feel the close ties that we do to our family and friends in Melbourne. For [Ms Handbury], moving with [Z] and I to Australia means moving home and we are very excited about taking this next step in our lives together.”
A draft copy of this statement described as “[Mr Handbury] Stat Dec” was sent from the father’s personal email to the mother’s work email on 16 March 2017. The mother relied on the email emanating from the father’s account as proof that the contents of the email were statements made personally by him. The email was marked Exhibit “M-7”. The draft clearly resembles the final document presented by the mother but differs significantly in detail and length. A copy of the draft is Exhibit “SCA-2”. When the “[Mr Handbury] Stat Dec” email was put to the father, he said that he could not recall having sent it and suggested that the mother could have sent it from his email account as she knew his email password. I asked the father to attempt to locate the email on his phone, but he could not immediately do so. I asked that he attempt to during the lunch adjournment at which time he was successful.
When the draft document was put to the father, he said that he did not recall drafting it. He said that he put “complete trust” in his wife to take “full ownership” and “full control over applying for the visa” on his behalf as she had a lot of experience with visa applications after having done one before.[5] This is in line with his affidavit in which he states that the mother was responsible for drafting and completing the visa applications. He deposed that whilst the mother did show him some of the material she prepared for the application, he did not see what was finally submitted. He attempted to corroborate the mother’s authorship by annexing two documents that are purported to be the file properties (metadata) of the draft statement. This document states that the author is the mother and that the company who created the document is Company EE. These documents were tendered as part of “SCA-2”. The father also relied on the message dated 28 March 2017, annexed to his affidavit, from the mother to his family in a group message: “Hi everyone. I’m in the process of submitting Mr Handbury’s VISA application and I need some information about family…”
[5] Transcript in Confidence, 23 May 2019, p. 59, 20-25.
The father said the mother was not telling the truth about him drafting the statement about “moving home to Australia”. He stated that he had contacted the visa authorities to inform them that he believed the mother had “put statements into [his] visa application that were wholly untrue.” The father’s evidence was that he did not remember reading the document, approving it and sending it back. The father’s evidence was that he had seen the document when preparing for the case, as he had gone online to look at his visa application, but not before. The father noted that he had recognised that the last paragraph of the draft statement was the same as the last paragraph of the wife’s sponsor statement which, he observed, established that the mother had written both.[6] There was no suggestion that the father had input into the mother’s statement which sponsored his application. The father’s allegation is that the mother inserted the paragraph extracted in [54] above without his knowledge or approval. Duplication of the paragraph was not contradicted in cross examination of the father, the father was not shaken on the fact that he had not seen the final documentation and no application was made to re-open the mother’s evidence to address the point.
[6] Transcript in Confidence, 23 May 2019, p 59-60, 45-7.
I accept that the mother was the author of the father’s visa application. The mother did not demur from the father’s assertion that she was responsible for handling the family’s immigration documentation. The mother’s evidence is that the father worked long hours in England. The mother had the greater opportunity and motivation to undertake the necessary paperwork for the immigration authorities. I accept the father’s evidence to the effect that he neither wrote nor approved nor adopted that part of the statement which is referred to in [54] above. The father’s evidence was not as fluent as the mother’s evidence but it impressed me as more extensive and authentic on this point. It follows that I do not accept that the sentiments expressed in the statement tendered as Exhibit “M-1”[23-4] and referred to at [54] of these reasons as corroborative of the intention by the father to come to Australia permanently or as part of an open ended arrangement. I reject the mother’s evidence in that regard.
Disposal of household goods and other effects in anticipation of travelling to Australia
The first part of the second day of the trial was spent hearing evidence about what household and personal items were sold from the City D property and which items were either kept and put into storage or brought to Australia. The mother’s affidavit affirmed 8 March 2019 [44] that the parents agreed to keep a lot of their personal items in storage in England and sold many other possessions on multiple sites including Facebook. The father in reply stated [4(rr)] that the parents kept all of their furniture, appliances and Z’s toys in storage and only sold baby items that were no longer needed.
The father gave evidence in chief that “personal items” and the tumble dryer were put into storage, other personal items were put up in the loft of the City D property and other items were sold such as baby items. He elaborated saying that Z’s toys, the furniture, the table, the chairs, the filing box, appliances and all of their personal items and documents such as diaries and photographs were put into either a storage facility or the loft. The filing box was described as a box where the parents put all of their documents. The father stated that all that the parents brought with them to Australia were clothes and some toys for Z. The parents maintain bank accounts and life insurance in the UK as well as the mortgage on the City D property.
Ms Burt for the mother, then put to the father a number of items and screenshots of Facebook posts selling household items. These screenshots were of an Epson printer, standing mirror, spice rack, fireplace tools, DVD player and two sleeping bags (“M3”). In short, Ms Burt’s cross examination was effective. The father did not acquit himself well. In painstaking detail the father denied, prevaricated, questioned the authenticity of evidence and queried the mother’s propriety but finally admitted that each item was sold or was likely to have been sold. In the result, the evidence established that the items disposed of were in the nature of a spice rack they did not use and a mirror that the mother regarded as ugly. They were well presented for online sale. Most relevantly, however, many household items were retained. The parents stored them in their loft and a shed but also used commercial storage, in City D, at a cost of £164.66 per month. The full total replacement value of the stored goods as new is £16,000. My impression is that the parents’ disposals were more in the nature of decluttering than paring down to the bone. I am satisfied that they retained much more than would have been prudent if they did not propose to return in the near future. It follows, that either they did propose to return, consistent with the father’s case, or that the mother was prepared to return.
Finally, Mr K, a mutual friend of the parents and previous colleague of the father, deposes in his affidavit sworn 30 January 2019, that he along with a group of friends assisted in packing up a large number of the parents’ possessions and taking them to a storage facility. He says that both parents told the group that they would be away for two years and then return after that period with the expectation that the same group of people would assist to unpack their items from storage and take them back to their house. The mother denies this but Mr K was not required for cross-examination.
The parents did not sell their house in England. The mother’s evidence was because it is such a good investment which was appreciating in value by approximately £20,000 per annum, so they decided to rent it. The father says they did not sell the house as they planned to return to it after the two year period, so they let it, which in England means that it is only rented for a limited period. The lease to the current tenants is set to expire in July 2019. The father gave evidence that the tenants have sought to renew the lease but that the parents have told them that they cannot give an indication about whether they could grant the renewal or not. The mother gave evidence that the property is worth approximately £465,000, according to the last mortgage assessment, however this was not based on a current valuation. The mortgage owing is approximately £210,000.
The parents lent the mother’s car to their niece.
Various representations to third persons about duration of the move to Australia
The father says that Mr T had sent the parents a WhatsApp message on 1 June 2017 that said: “When we return to the UK, we will be all yours in terms of helping you with your temporary move to Oz…” Mr T and Mr W are married and mutual friends of the parents. They are witnesses for the mother. The father conducted the marriage ceremony of Mr W and Mr T and the mother was the “Best Woman”. They are witnesses for the mother.
In July 2017, the father’s permanent position in the UK ceased. He accepted a settlement package to conclude his employment.
On 14 July 2017, the mother sent an email on behalf of the parents to Z’s kindergarten, to the primary school that the parents had put Z’s name down for at birth, being E Primary School, and to the City D County Council, informing them that the parents were declining Z’s place for September 2017 because they were “moving” to Australia.
On or about 23 July 2017, the father applied to the Victorian Professional Association to have his UK degree recognised in Australia. On 4 October 2017, the father was informed that he had been registered with the Victorian Professional Association.
On 7 August 2017, the mother emailed the father’s former colleague Ms JJ saying:
“My work asked whether we would be interested in relocating with them for a period of 2 years, so I’ll be continuing on with them when we get there… We plan to be there for around 2 years, so we will be renting out our house rather than selling it.”
The wife’s response to this email in cross examination was that it was easier to tell people who they were not close with and who did not care about the length of their stay in Australia, that they were going for two years “instead of saying two or three years unless we have a baby or unless we change our minds in the future.”[7] Ms Greenham asked if it was most likely that the parents would be returning after two years as the mother had written in her email. The mother replied that at that point in her life, she thought that it was likely that they would return after two or three years depending on their circumstances as their life unfolded here. Ms JJ was a work friend of the father. The mother’s reference to two years is also consistent with her telling someone who she thought might be in discussion with the father that the trip was to be of two years duration. Notably, the mother did not seek to qualify her evidence about statements to Mr K (see par [62] above) by saying it was easier to say the family would be away for two years. She denied the statement to which Mr K deposes. I regard the mother’s email to Ms JJ as corroborative of the father’s evidence that the mother represented to him that the family’s time in Australia would be limited and limited to two years.
[7] Transcript in Confidence, 24 May 2019, p. 234, 40.
On 16 September 2017 Mr T organised a farewell party for the parents for family and friends. Mr W’s evidence is that the parents told him they were “moving to Australia”.
The mother says they intended to try for another child in Australia and that they “knew between [themselves]” that this would prolong their stay. The mother also said the health of their parents and specifically the death of the father’s parents would mean that “there would not be much point in going back” and Z’s stage of development and her schooling were other factors that may have prolonged their stay.
The father recalled in cross examination, a conversation that he says the mother and father had with the father’s parents where the mother expressed that they would be coming to Australia for two years unless they were to have a baby in Australia. The father says that the mother had told his parents that if they did have another child it may be “two years and one month or it might even be less than two years is what they were told.”[8] The father says that they never made any specific plans in relation to the possibility of having another child in Australia but that the parents were of the understanding that they might stay two years and a month but that they needed to return before September when Z would be due to start the UK school year.
[8] Transcript in Confidence, 23 May 2019, p. 48, 6-8.
On 1 October 2017, Mr T and Mr W gave the parents a card. The card read:
“...think about the adventure you are going to start right now. A few years in Oz… in lovely company of family, reconnect with old friends… we are very excited (and very jealous too) of this great opportunity life has thrown upon you. Enjoy it as much as you can! Never forget that we love you very much… and we shall see you very soon!...”
The father when shown this card in cross-examination, said that he had not seen it or read it before and that the card had not been given to him but would have been given to his wife. He accepted that the card had been written by one of the two friends who had signed off on the card. The mother’s counsel put this card to the father as evidence that friends of the parent’s knew that the parents intended to stay for longer than two years by reference to “a few years”. I don’t accept that the father’s position is weakened by the card from their friends. It is another instance of representations about the trip being of more than two years being quarantined by the mother from the father.
Prior to the parents leaving for Australia, Ms H Handbury, the paternal grandmother, deposes that she was informed by the parents that they would be going to Australia as a family as the mother had secured employment there for “2 years” and that this would be “a great family adventure for Z.” The mother did not require Ms H Handbury for cross examination.
Ms L, the sister of the father who lives in England, also deposes that she and all of the family were told by the parents that the parents were given an opportunity to go to Australia for 2 years. Ms L deposes that she was advised that Z had been told it was “an adventure” upon which they would return to the UK in 2 years’ time. Ms L says that Z had conveyed this to Ms L’s daughter WW, being Z’s cousin with whom she is very close. The mother denies that this occurred. Ms L deposes that she questioned the mother about whether the mother intended for the trip Australia to be extended beyond 2 years or whether there was a possibility that the parents and Z would remain in Australia. Ms L says that the mother replied that if they had a child and it “fell[sic] wrong” with their return to England then it could be “delayed by a couple of months” but that they would return within as close to or before the 2 years as they could.
Mr M, a mutual friend of the parents, deposes in his affidavit sworn 31 January 2019, that his understanding of the move to Australia was that it was a temporary move for 2 years and that after the two years the parents would move back to their home in England. He says that he was “explicitly” told by both parents that the move was only for 2 years and that he discussed the costs of storing furniture and other belongings for two years with the parents. The mother denies this. However, she did not require Mr M for cross examination.
Mr N, a friend of the father’s deposes in his affidavit sworn 31 January 2019 that he spoke with the parents both individually and together at various times prior to their departure to Australia and that he “understood without doubt that their visit to Australia was temporary for two years”. He says that the parents recognised that the UK was where they had “put down roots” as Z was born and had lived there, as Mr Handbury had greater work opportunities there and Z’s grandparents were there. Mr N was not required for cross examination.
Terms of mother’s employment in Australia and re-employment thereafter
On 20 September 2017, the mother received a formal offer of employment from Company HH for a role in Melbourne commencing 1 October 2017. The mother deposes that her new employment required her to cease employment with Company EE GmbH and be employed in her new capacity by Company EE’s joint venture partner, Company HH. Her role with Company HH would involve her selling Company EE GmbH and Company HH products. The mother was to receive a base salary of $94,080 plus superannuation. The mother maintained the position 0.9 of full time which would be reviewed periodically. In addition to the base salary, the mother receives temporary benefits of commission, accommodation allowance of $3000 a month, transportation allowance of $800 a month, and “relocation expenses (including flights, shipping of baggage and furnishings for our home)”. The mother corrected her affidavit evidence to specify that only her flights were included in the relocation expenses; not the father’s or Z’s flight costs. Company HH pays the mother’s salary and then invoices Company EE GmbH monthly for half of the mother’s salary and her employment benefits. The mother’s evidence was that it was agreed between Company EE GmbH and Company HH that after a 2-3 year period, Company HH would cease invoicing Company EE GmbH and would carry the costs of the mother’s work solely and her accommodation allowance would be removed and the mother would receive a salary increase in lieu of receiving the temporary benefits.
A document entitled “[Company HH] and [Company EE] – Heads of Agreement” and executed on behalf of Company EE is an annxure “MsH-05” to the mother’s affidavit. The mother’s evidence is that it was presented to her as part of her employment documentation on 20 September 2017 and she signed it on 28 September 2017. There is no suggestion that the mother showed any of the documentation to the father. Relevantly, the documentation between the companies referred to the mother at pages 3 and 4, as follows:
The term of her employment will be set for a minimum period of two years or as otherwise agreed, will be executed through the normal [Company HH] employment contract.[Page 3]
…
Term of Agreement
After the joint 2-year investment, [Ms Handbury] will most likely return to Europe and it is envisaged that [Company HH] will continue to operate as the [Company EE] Premium Business Partner for Asia-Pacific on a 50% revenue share in return for 1st and 2nd level support, sales and distribution. [Page 4]
The mother states [33]:
“[Mr Handbury] and I discussed the job offer at length before we made the decision that I would accept the job. Although [Mr Handbury] and I did not discuss a maximum amount of time we would spend living in Australia we agreed that we would stay in Australia for at least 2 to 3 years. At that time, we would look at our circumstances and decide what we wanted to do next, having regard to [Z’s] needs and the alignment of the Australian and United Kingdom school years, whether or not we had had another child, my and [Mr Handbury’s] work, [Mr Handbury] obtaining citizenship and other matters. We did not discuss or agree on any specific date. We both agreed to see how things went when we arrived.”
The father denies that he and the mother discussed the job offer due to constraints of time but that he and the mother agreed to spend two years in Australia and then return to the UK after those two years. The father’s evidence was that they did not therefore, “consider what to do next, as we had agreed before we left” to return after two years and not to just see how things went when they arrived.
The mother seemingly imputes an agreement of 2-3 years as between her employers, to the father but falls short of saying that he ever saw the document which passed between the employers. The father denies the mother’s assertion that the moving costs were for a “permanent relocation but were for our two year trip.” The father stated that he had not been shown the mother’s employment terms that stipulate that the mother’s employment terms would be altered after an initial period. The father’s evidence was that the mother signed the documents only days before they left the UK and the mother did not discuss this aspect with him.
There is no evidence that the father saw the mother’s employment contract prior to it being introduced as evidence in this proceeding. The father’s consistent evidence was that the employment was to be for two years is strengthened rather impugned by the above extracts, particularly the excerpt “After the 2 year investment, [Ms Handbury] will most likely return to Europe…” Notably England, was at the time the document was created, and is still, part of Europe. Whilst the mother’s employers negotiated around 2 to 3 years, it was specifically contemplated that the mother would leave Australia after 2 years. Accordingly, the evidence adduced by the mother does not significantly advance her case. I regard it as giving weight to the father’s contention about a job being available to the mother upon return in two years.
On 28 September 2017, the mother signed the Company HH contract. On 30 September the mother was presented with a reinstatement agreement from Company EE GmbH. The agreement was that if the mother returned from Australia within 3 years at the conclusion of her contract with Company HH then Company EE GmbH would reemploy her. The mother in her affidavit states that the reinstatement agreement does not specify the country or basis on which she would be reinstated.
Mr U is the Chief Executive Officer of the Company EE GmbH Group. In his affidavit sworn or affirmed 7 March 2019, he deposes that the employment agreement would continue for a minimum of 2 years or as otherwise agreed. He says that he made it clear to the mother that she and the family may remain in Australia for longer than 2 years as the arrangement was “open ended.” He also states that the mother signed a reinstatement agreement with Company EE GmbH prior to ceasing her employment with them on 30 September 2017. This agreement would allow her to be re-employed by Company EE GmbH if she returned within 3 years to Company EE GmbH but does not guarantee her employment in the UK. However, he added that there was no agreement between the mother and Company EE GmbH that she would return within 3 years nor does it require her to return within 3 years.
The father was not aware of this agreement until later in 2018 when he discovered it on their joint computer. He says that he was told by the mother that her role was for two years as she had secured employment back with Company EE GmbH after this period so the parents could return to the UK with Z. When this was put to the mother, that her relocation with the company was only for two years, the mother agreed saying that the agreement was that the parents would be in Australia “for at least two years.” She continued saying, “I did think at the time that we would most likely return unless something changed and there was provision in there if something did change that I would stay.” [9] Ms Greenham then put to the mother that the mother did tell the father and her employer that she would return after two years to the UK, and the mother replied yes, and that “[she] did think at the time, that most likely we would go back unless something changed”[10] such as they became pregnant. Ms Greenham questioned the mother on her addition of the words “or three years” in relation to the email the mother sent to Ms JJ, after giving evidence that the agreement was two years unless something changed in relation to her reinstatement option and contract with Company EE. The mother sought to clarify that her evidence is that the parents agreed to come to Australia for at least two or three years and then they would see what happened. The mother stated that her evidence of two years unless something changed was an “error, because our agreement was two or three years.”[11]
Negotiation of a car lease for a three year term
[9] Transcript in Confidence, 24 May 2019, pp. 230-1, 45-2.
[10] Transcript in Confidence, 24 May 2019, p. 231, 25.
[11] Transcript in Confidence, 24 May 2019, p. 235, l5.
Prior to the parents’ departure, the father began making arrangements for a car in Australia. The mother places reliance on these communications to establish that the father was contemplating staying more than two years in Australia. On 20 September the father sent an email to Mr KK of LL Group stating that he was seeking to lease a car but would “want to hand the car back after 2 years also as we’re only staying in Melbourne for that amount of time”. On 22 September the father received a reply from Mr KK about the leasing of a car in Melbourne on a 3 year lease. The father replied to Mr KK on 22 September stating, “The issue is that we may stay for 2 years or slightly longer, perhaps nearly 3” and asked what the penalty would be of handing back the car after 2 years rather than 3 years. On 18 October 2017, just after their arrival in Australia, the parents signed the lease agreement for the car. The mother sent an email to Mr MM at LL Group Finance seeking finance with 50% retained as a balloon payment at the end of the 3-year term. The father was cross examined about the car lease at length. I accept his explanation that they entered into a 3 year lease because that is what was available and that he would have preferred a 2 year lease.
Family arrives in Melbourne
The parents with Z left England on 1 October 2017 to arrive in Melbourne on 3 October. The mother had been living in England for 12 to 13 years by this time and Z was just over 4 and a half years of age.
The entry card for the father’s arrival in Australia was produced and put to him in cross examination. The father claimed to have not completed the card himself, however it was signed by him and so he said “I have to take responsibility for it”. I confirmed with the father if it was his handwriting on the card and he confirmed it was his handwriting and not the mother’s. He continued in his answer saying:[12]
[12] Transcript in Confidence, 23 May 2019, p. 53, 40.
“I don’t recall 5 having necessarily handing over that card at the time. We had the cards in our possession – I wouldn’t be able to recall who actually gave the cards to the officer as we went through, but I have to accept that, looking at it, the box there – (a) migration permanently to Australia – has been – there’s an X in the box and I look at that and think, “Well, 10 that’s” – it does – obviously, it’s not in line with what we were – what our plans were. We were coming here for two years.”
I put it to the father that it did not matter who the card was given to and that what matters is that he signed it. The following exchange then took place in relation to the father having marked the box on the card that stated that he was “migrating permanently to Australia”:[13]
[13] Transcript in Confidence, 23 May 2019, p. 78, 20-45.
WITNESS: Sorry. I was just going to say I didn’t see myself as – I guess I looked at “visitor” and I saw “permanent” and I knew I had a permanent visa, so I was using my permanent visa to come in and that’s why I crossed that box or my wife crossed that box. I don’t know but I have to take responsibility. I signed the card but it wasn’t in line with what our intentions were and I should have - - -
HER HONOUR: Excuse me. Are you saying that she took the card from you, crossed the box and gave it back to you?---
I’m not saying that that definitely – that that happened. It may – my wife may have completed that section or I may have asked my wife at the time, “What do you – which box do you think I should tick, given the fact that we’re coming in for two years and I’ve got a permanent visa?” All I can say is what our intentions were. We were to come here for two years and, looking at that now, when I see “migrating permanently to Australia”, that is not in line with what our intentions were prior to this arrival of the third - - -
You’re not being asked about your intentions. You’re being asked about the form?---
Yes.
Right? Z didn’t do it, did she?---No. Of course not. No.
Okay?---No. No. No.
You signed it. All right? It’s going to, in all likelihood, have been your cross?---
I have to accept – yes. Yes.
This was an example of the father giving evidence in a hesitant manner. His demeanour was not impressive but I accept the content of what he eventually said. That is, an application had been lodged on his behalf for a provisional and a permanent visa. A permanent visa had been granted. He did not want to contradict his permanent visa status by representing that he was going to reside in Australia for only two years.
The parents signed a lease for a house in Suburb NN, Melbourne on 19 October 2017. The lease was renewed in October 2018.
The mother deposes that during their time in the UK, she and the father had worked full time with only one extended break in 2010/11 until they moved to Australia and the father took 6 months off from working. The mother alleges that the father had been working 60-70 hour weeks and earning $80,000 per year. The father denies working 60-70 hours a week and in reply deposes that he worked about 40 hours per week and would “occasionally work longer hours”.
On 31 October 2017, Z was enrolled into kindergarten in Suburb NN.
Regarding the mother’s car in England, the wife in her affidavit [55], states that car was sold on 20 November 2017 after their arrival in Australia. She says that the father’s parents assisted with the sale and received some of the proceeds as they had originally sold it to the parents’ for less than market value. The father confirmed in cross examination that the parents car in England was sold but only after an arrangement to loan the car to the father’s niece fell through. I am satisfied that the parents had sought to retain their car in Town OO when they left England and then sold it because the person with whom they left the car did not want it. This evidence does not assist me to conclude whether there was an agreement for 2 or 3 years but it does support the proposition that the family would return.
The mother alleges that on 22 December 2017 Ms L sent a “barrage of messages” to a family WhatsApp group “chastising” the mother for sending Christmas cards that were not individualised cards. This incident is not probative of an issue in this case save that the mother continued to perceive the father’s family as dominating.
Finding about agreement to remain in Australia for two years (as alleged by the applicant
Having reviewed the evidence, I am satisfied that the father’s description of the family’s move to Australia as being for a finite period of two years is accurate. Furthermore that, up until mid-February 2018, the mother wholly encouraged the father to think that the family’s time here was for a limited period of two years and that she did so because she well knew that the father would not have agreed to move the family to Australia on a permanent basis.
Events in February 2018
The parents had been in Australia for around four and a half months when a series of alleged conversations occurred in the month of February concerning whether the mother intended to return to the UK with Z or not. These are central to the issue of whether the mother repudiated the alleged agreement to stay in Australia for only two years. The mother’s evidence was that she and the father formed a “mutual intention to remain in Australia” in early 2018. The father denies this and maintains the position that he consistently reminded the mother of their two year agreement whenever she raised not returning to the UK.
The mother alleges, but the father denies, that in February or March 2018 she asked the father “if he agreed to viewing our time in Australia as open ended and he said that he did.”
The SCA’s case is that the date of repuditory retention is 16 February 2018. Ms Greenham alluded at the start of the trial that the SCA may make application to amend to change the date of retention. However, the SCA maintained the retention date as 16 February 2018.
Z turned five years of age in February, and had commenced primary school two weeks prior.
The mother in her affidavit [71] states that on … February 2018 (Z’s birthday) the parents had “a serious discussion about [their] marriage” in which the mother told the father that she was “unhappy”. The mother says the conversation continued on 14 February (Valentine’s Day) when she told the father she was “unsure about whether [their] future was in Australia or England.” She said she felt “significant pressure” from the father’s family when they made decisions about their future and felt like now they were able to make decisions about their family’s future together.
The mother says the father became “very upset” during the discussion on 14 February (Valentine’s Day) and that he left the dinner table and home. The father contacted a mutual friend Mr V whilst the mother was on the phone at the same time to his friend’s wife Ms V. The mother says Mr & Ms V were in the car together whilst talking to each of the parents. The mother’s evidence is that after 14 February the parents did not “really discuss where we might live in the future, though [they] did discuss some of the other challenging aspects of [their] relationship” being their issues of intimacy. The mother says the conversations on these two days were “general and ongoing discussions about our future living arrangements, and neither of us made conclusive statements about returning to the United Kingdom.” The mother’s affidavit states that she had noticed cracks in the relationship at the start of 2018 upon which time they were in Australia. The mother’s oral evidence was that with the “benefit of distance and the contrast between our old lives and our new lives” that issues started to surface that had been “simmering for a long while”.
In addition to the conversation about intimacy issues on … February (Z’s birthday), the mother’s evidence is that on 14 February (Valentine’s Day) she also told the father of her interest in one of her colleagues. Her oral evidence was that she had “noticed chemistry” between her male colleague and herself and that she felt a “spark” so wanted to talk to the father about this. The mother clarified that she did not have “romantic feelings” for her colleague at this point in time but that she “felt an attraction” which to her is different. She also said that she did not know if it was mutual at this stage. The mother acknowledged that the father felt very threatened by this and that he did not cope well with this conversation and the mother’s attempts to discuss her feelings openly.
In cross examination, the mother in relation to the events of 14 February described her discussions with Ms V stating that she was not sure where she wanted the family’s future to be and that she wanted their decision about their future to be decided as it came and not based on a timeline:[14]
Okay. What else did he say that made you think that he agreed – he had forsaken any idea of going back to the United Kingdom?---I – I don’t know that I would say that [Mr Handbury] had ever forsaken any idea of ever going back to the United Kingdom. It was more that I said to him, “I just want to make the decisions as we come, can we agree that our time here is open ended?” and he said yes. And from that point on we just went about our lives. And from time to time things would come up, like the example that I have put in here about talking about high schools for Z, and I would be pleased and happy that – that we were on the same page and that [Mr Handbury] was thinking that way. And then life just carried on.
All right. Well, having regard to the fact that you weren’t due to go back for another 18 months - - -?---Yes.
- - - were you thinking when – you didn’t think that he never wanted to go back to England to live as a family?---Neither of us made any conclusive statements about ever going back or ever staying here permanently. We just said that our time here was open ended and ongoing.
[14] Transcript in Confidence, 24 May 2019, p. 238, 1-18.
If the mother was asking to make decisions as they come and to regard the family’s time in Australia as open ended, I am prepared to infer that, prior to February 2018 the situation was not open ended and there were timelines.
On 16 February the mother says that the father had a conversation via WhatsApp with Ms V. The mother says the conversation was about the ongoing discussions that had taken place in the preceding days as the parents had not spoken on the morning or afternoon of 16 February other than “in basic messages throughout the day” letting the father know her whereabouts.
The father on the other hand has a very different view of what occurred across these days in February. He deposes that on … February 2018, which was Z’s birthday, the parents had a conversation about the mother’s concerns about their level of intimacy. The father says this was not a serious discussion about their marriage and denies that the mother said she was unhappy. I am satisfied that there was a discussion on Z’s birthday in which the mother expressed concerns to the father about their intimate relationship. The fact that the father denies that the discussion was “not a serious discussion” does not convince me that the mother was not being serious about a “serious issue”. The father denies that the conversation on … February occurred as the mother deposes. He also deposes that they continued to discuss the intimacy issues over the following days. However, in cross examination the father was asked if the conversation about intimacy continued after … February and the father replied that it was not discussed again until 16 February.
Counsel for the mother relies specifically on the father’s failure to insist that Z go back to England as a component of parenting orders which he was negotiating with the mother’s solicitors in September. However, I am not satisfied that he was actively negotiating. He read the minute provided by the mother and refused to sign. He then took steps to apply under the Regulations and he has let these proceedings run their course. It would have been counterproductive in the extreme for the father to take other proceedings in Australia or to launch proceedings in the UK when these return proceedings are on foot.
In the Summary of Argument of the Respondent Mother, counsel enumerates other evidence from which she submits I ought to infer that the father was not going to assert his rights.
I have dealt with a good number of the mother’s contentions above in chronological order. The father denies agreeing to an open ended arrangement to return Z to England, he denies discussing high school for Z. The father’s assurance that he did not “plan to settle Z in the United Kingdom” was in the context of not seeking to over hold Z had the mother permitted him to take Z temporarily to visit his family. It was a statement delivered with umbrage that the mother would consider that he would seek to over hold Z.
The father’s statement to the mother in April 2018 that they were “blessed with a unique chance to re-establish ourselves here” was made in the context of reconciliation. It is a part of a sentence appearing in an incomplete text message which is annexure MsH-18 to the mother’s affidavit affirmed 8 March 2018. Read as annexed, it is unclear whether the word “here” refers to Australia or to a time. The text reads
“you may well be thinking that I’m angry with you for this. Quite the opposite. You’re still the same beautiful person in my eyes that I first fell in love with. The fact that you raise these things only makes me respect you more for having the courage to raise something that needed discussing irrespective of the high-stakes at play. This has given us an opportunity to analyse what the past has taught us about our relationship and it comes at a time when we have in fact been blessed with the unique chance to re-establish ourselves here with all the things that make us ‘us’ as a starting point. I was excited about what was to come and still am and I want you to be part of the journey too. However this time will do it from a place of deeper awareness of ourselves and of each other. That’s my pledge to you. All…”
Coincidentally, counsel for the respondent mother referred me to the decision of Kay J in Department of Health and Community Services, State Central Authority Casse [1995] FamCA 71. That case involved a Mauritian couple who, as temporary visitors to Australia, made a joint application to reside here permanently. The mother re-partnered and, when the father could not woo her back, he sought a return order under the Regulations to facilitate the child’s return to Mauritius under his care. At [480], his Honour stated:
“I would adopt the views of the Court of Appeal in Re R (Child Abduction) (1995) 1 FLR 716 at 727 that there needs to be clear and unequivocal words and conduct which could properly be interpreted as acquiescence on the part of the father. In my view they cannot be true acquiescence that the parties are in a state of confusion and emotional turmoil (as identified by Stewart-W LJ in Re A (Abduction: Custody Rights)[1992] Family Consultant 106 at 121).
I am satisfied that the husband’s statement on 26 April 2018 was made when he was significantly confused and desperate to win the mother’s affection. The text interchange relied upon by the wife appears after the parents’ communications on 24 April 2018 which is extracted at [129] above.
The partial sentence written by the husband to the Ms V, also on 26 April 2018: is part of a long message which is annexure “MsH-19” to the mother’s affidavit affirmed 8 February 2019 and is an entreaty by the father for Ms V to intervene on his behalf and to reconcile.
The statement to Mr VV is taken from the communication extracted at [145] above commencing: “I’m devastated that it’s happened to us...” and clearly in the same vein as the text messages of 26 April 2018.
The communication of 11 October 2018 to the maternal grandmother contains the part of the sentence upon which the wife relies in the context of the father’s bitter complaint about the time that the mother is spending travelling for work. The father is exasperated.
Given the huge amount of electronic communication at the disposal of the mother in these proceedings, the selection upon which she relies as evidence of acquiescence is paltry and unconvincing. It falls far short of conduct on behalf the father which clearly and unequivocally amount to acquiescence by him. I assume that the mother’s claim for acquiescence falls under the first three limbs of the quotation from Lord Browne-Wilkinson and I find that the father did not have a subjective intention to permit the wrongful retention. If I am wrong and the mother makes her claim on the exceptional basis, I find that the mother has failed to produce evidence of words or actions by the father which clearly and unequivocally show and have led her to believe that he is not asserting or would not assert his right to summary return of Z and are inconsistent with such return to the extent that justice requires that he be held to have acquiesced.
I am not satisfied that the father acquiesced within the meaning of r.16(3)(a)(ii). Accordingly no exception return has been made out and the return of Z to the United Kingdom is mandatory.
Matters which would inform the exercise of the court’s discretion to refuse return upon one or more exceptions to return being made out (which is not the case here)
If an exception is found to apply, the Court would have a discretion to refuse return. I have found that the father did not acquiesce to Z being retained in Australia. However, if I am wrong about acquiescence, I will consider how I would have exercised the resultant discretion
The Full Court of this Court, in HZ and SCA [2006] FamCA 446, approved the application of factors discussed by Hale LJ in TB v JB [2000] EWCA Civ 337 as appropriate to inform the exercise of the courts discretion to refuse return.
In TB v JB, Laws and Arden LJJ, Hale J dissenting, an appeal from a decision of Singer J was upheld in relation to children from New Zealand. Hale LJ (as she then was) accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574. The factors were:-
a)the comparative suitability of the forum to determine the child's future in the substantive proceedings – the UK is a jurisdiction where parenting arrangements are preconditioned on the best interests of the child and the child’s welfare. Both parents are currently living in Melbourne but have access to the English justice system. The parents are now separated and will, presumably, have to finalise the financial relationship. They own the City D property and, as I heard at length, they have many goods and chattels still in England and stored privately as well as in commercial storage. I do not know a great deal about the parents’ financial circumstances but the mother’s employment package with Company HH referred to superannuation. I assume that the father accumulated superannuation entitlements during his working career in the United Kingdom. The superannuation splitting provisions introduced into Part VIII of the Family Law Act 1975 (Cth) in 2007 apply only to Australian superannuation interests. Extraterritorial superannuation interests cannot be treated as if they were property and, absent agreement between the parties, our family courts would be limited to having regard to the superannuation interests of the parties or either of them as a financial resource. This is not a major issue but I am confident that the parents do not have the means or the inclination to engage in proceedings in two countries. Particularly as these proceedings will have been very expensive for the mother without a single substantive issue having been resolved.
b)the likely outcome (in whichever forum) of the substantive proceedings – the outcome will be predicated on Z’s best interests in either jurisdiction. It is possible for the mother to make an application for leave to remove Z from the United Kingdom to reside permanently in Australia.
c)the consequences of the acquiescence – Z has now been in Australia for nearly two years and is settled here. However, she expects to return to England and, by all accounts, would enjoy doing so. Whereas the parents will face interruptions to their employment, they are geared up to move back in terms of the rental property here in Suburb NN being leased until October 2019 and they are able to give the tenants of the City D property notice to vacate. The mother has employment upon her return in ‘Europe’ which could, conceivably, be the United Kingdom.
d)the situation which would await the absconding parent and the child if compelled to return – there is no suggestion of criminal or civil sanctions. It will be expensive for the parties to return even temporarily given that they have each been deriving income in Australian dollars. They agreed that they will each face a shortage of cash and, in that context, agreed to mutually drawdown on the mortgage facility secured over the City D property.
e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount) – I accept the submission of the applicant State Central Authority and note that the Family Consultant, Ms AA, has stated that “it is likely therefore that if she (the child) was to return to the UK, Z will be able to form new friendships, as her social and interactional skills have matured, in line with her developmental milestones.”[32] Further, “it is considered likely therefore that the positive relationships Z has formed with her extended maternal family, will be able to be sustained in a similar manner (to how she maintained relationships with the paternal extended family such as by Skype and other electronic means), if she were to return to the UK”[33]. Further, Ms AA reports “whilst any geographic move is likely to be experienced by a child as disruptive and be accompanied by the loss of familiar routines, relationships with extended family, schooling and friendships, children generally adapt to transitions of this nature when they are supported by both their parents to do so.”[34]
f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused – reasonable minds might differ on the applicability of this hot pursuit remedy (summary return) to the facts of cases such as this case. As jurisdictions move away from the identification of habitual residence by reference to parental intention, there will be a number of retention cases, where permission is given to remove a child of a fixed period, which no longer fall under the 1980 Convention by virtue of the habitual residence of subject children being found to have changed to the destination state prior to the alleged wrongful retention. That is not a thwarting of the philosophy of the Convention, it is just a consequence of the change in our jurisprudence. However, this is not such a case. The Regulations are applicable to the facts of this case and the return remedy is properly invoked. This will not be an expedient outcome for the mother (or the father) but it is an outcome which I consider to be just. In another context Gloria Folger DeHart made the following observation which I think is apposite to the exercise of a discretion to refuse return;
When allegations that may support a defense to the return of the child under the 1980 Child Abduction Convention are made by the abducting parent, authorities considering the request are faced with decision-making in circumstances that invite misunderstanding, insufficient information, and, unfortunately, misplaced sympathies. Without a coherent system for determining jurisdiction and ensuring adequate fact-finding, decisions refusing to order return, probably permanent in nature, undermine confidence in the decision-making process and subvert the purpose of the 1980 Child Abduction Convention.[35]
The prompt return remedy is a remedy for children as well as parents.
[32]at paragraph 50
[33]at paragraph 51
[34]See paragraph 60.
[35] Gloria Folger DeHart, ‘Relationship between the 1980 Child Abduction Convention and the 1996 Protection Convention, The Symposium Issue: Celebrating Twenty Years: The Past and Promise of the 1980 Hague Convention on the Civil Aspects of International Child Abduction’ (2000) 33 New York University Journal of International Law and Politics 83,
For the above reasons, if a discretion to refuse return was available to me on the facts of this case, I would not be inclined to exercise it.
Conditions to return
From the perspective of the child who is subject to the return order, it is usually incautious for the court to rely on parents to do, or to refrain from doing, an act or thing which is against their interest, absent some compulsion of law or a serious consequence for non-compliance.
Regulation 15(1)(b) and (c) provides that the court may, if it is satisfied that it is desirable to do so, make any order or impose any condition “that the court considers to be appropriate to give effect to the Convention.” These arrangements are often called “safe harbour orders” or “safe harbour arrangements”. Safe harbour orders typically set up conditions in the child's country of habitual residence to safeguard the child upon her return and until the parents resolve parenting arrangements or a court of appropriate jurisdiction becomes seized of the matter.
Conditions to return should be carefully crafted and operate only until a court of competent jurisdiction in the other state can be seized on the matter. Conditions properly imposed on return orders should respect the operation of law in the requesting state whilst providing for the reasonable needs of the returning parent and child in the immediate to short term. They should:
a)be simple;
b)be realistic;
c)be necessary and proportionate to the circumstances of the case (not a consolation or reward for return);
d)usually, not place the respondent in a better position than they were prior to the wrongful retention or removal of the child;
e)not usurp the regular functions of courts and state of habitual residence;
f)be directly enforceable in the jurisdiction which the best interests of the child require the condition to be effective.
Of course parties are entitled to be accorded procedural fairness in relation to the imposition of conditions to return.
Ms Burt in addressing me on conditions for return, should a return be ordered, submitted that there would be difficulty on the mother’s behalf if the return is to be “forthwith”. Given the delay in delivery of this decision, there should not be any difficulty with “forthwith”. It is nearly September which is when the family planned to return in any event.
In examination in chief, Ms Burt asked the mother what conditions she would wish to be in place in terms of Z’s education. The mother stated that she would like Z to attend a school in City D and that the parents agree on such a school together. The mother suggested that if they could not agree, that the mother choose three schools and the father choose one from those three. In terms of timing the mother envisaged that it would be appropriate for Z to start school in the UK in September 2019 and so it would be appropriate that Z remain in Australia in school until 9 August before departing between 12 and 23 August 2019. In her explanation of why these dates would be appropriate the mother’s evidence is that Z will miss the second half of grade 1, as when Z arrives in the UK she will go straight into grade 2. Therefore, the mother explained that she wants Z to have as much time in grade 1 in Australia as possible, but also allow enough time to set Z up prior to the UK school year commencing. The mother also gave evidence that Z had to go into grade 2 in the UK as all children in England start school after they turn four years of age rather than it being a parenting decision about when they start school. The mother added that they would have to apply for permission for Z to not be in grade 2 which, to her knowledge, is not often granted. Therefore, for continuity, the mother suggested Z remain with her age cohort.
The mother gave the name of F School, City D as an option but admitted that she had not done research on any schools in City D. From the bar table, evidence was given that the school year is to begin on 4 September for all state schools in the City D area. It was unclear if these dates would be different for the County S area.
The mother was cross examined about the return to City D rather than County S where the father’s family live. The mother’s evidence is that Z and the mother have never lived in County S and that she does not accept that Z’s needs would be met by the father’s family. The mother stated that she believes she will not have the support of the father’s family in the UK so she would prefer to establish herself with Z in City D.
The mother was asked if she would return with Z if Z’s return was ordered. The mother’s answer was “I would certainly try”. I later asked if she would want to travel with Z, the mother said she would like to do so. I asked how sure she was that she could travel to the UK between 12 and 23 September and the mother said she would do everything possible to do so. I asked if the father could travel on the same plane as the mother Z and the mother agreed this would be appropriate. The mother stated that the family had flown to Australia in economy class and I suggested that they could travel together in a row of three with Z sitting in-between the parents. The mother said she would prefer not to sit in this arrangement but would do so if it was required.
In cross examination, the SCA asked the mother if she was willing to sit in a row of three for the return flight if the father had informed the SCA that he is willing to do so. The mother replied that she thinks she would struggle because of the level of conflict between the father and herself but that they have managed such conflict until now and so would put it aside in Z’s best interests. The mother stated that if she felt that sitting in this arrangement was in Z’s best interests then she would do so.
In terms of accommodation, the mother said she would need to rent a house in proximity to the school that Z was enrolled in. The mother stated clearly that she intended Z to be living with her and that she did not “wish to return to the house.” She added that she could not “imagine living in that house again” and would like for it to be sold.
In terms of financial support, the mother seeks support for rent, a car and furnishing of the house which she estimates over six months to be approximately $40,000. I asked the mother if she would continue to earn around $100,000 a year as she had done in Australia and the mother replied that she would earn $80,000 as she had done prior to coming to Australia. She anticipated that the husband would earn about the same. I asked her therefore, on what basis the father should pay her $40,000 to relocate and the mother responded that she anticipated that there would be a gap in her employment finishing and her finding employment in the UK. When asked again on what basis this entitled her to such a payment from the father, the mother said that she did not know and that she did not know how she or the father would afford the relocation. I suggested that they could draw down on the mortgage and the mother replied that they could sell the house to give her and the father some access to equity. In relation to the mortgage, the mother to the best of her knowledge, gave evidence that on the last mortgage assessment the UK property was valued at £465,000 with a mortgage of £210,000 remaining. In relation to an accrual of leave that she could use to access equity, the mother said that she had used a lot of her leave in preparation for these proceedings.
Ms Burt asked the mother how likely she would be reemployed by Company EE if she returned to the UK. The mother replied “I actually have no idea” and stated that Brexit was her primary concern as it would affect the “employment laws”. The mother attributed this concern to the fact that Company EE is a European company.
The mother in cross examination gave evidence that she has been earning $94,000 a year plus rental and transport allowances being $800 a month. In total therefore, the mother’s evidence is that the total package is approximately $165,000 a year. The mother was asked if she could accept that she has earnt a lot more than the father. The mother stated that their base salaries were the same but that she had the benefit of relocation expenses. The mother did concede that the father would possibly have a gap in his employment if he returned. The mother was asked if she had a right to be reemployed under her employment contract. The mother’s evidence is that there is a reinstatement agreement which applies if she returns within three years and will include an offer of employment within a group of companies. She stated further that the reemployment contract does not state in what country she may be reemployed.
Ms Burt then referred the mother to parenting arrangements for Z immediately after the return. The mother suggesting equal shared care being something like the arrangement that is in place currently being a four-three arrangement that rotates every four weeks which in effect allows Z to see both of her parents each week day.
The father was not examined about any conditions for return. The State Central Authority did not seek to re-open the father’s evidence.
One of the purposes of the Hague mediation in which the parents participated in May 2019 was to prepare for outcomes. The parents should be in an advanced state of negotiation or agreement about how to return to the United Kingdom and with whom and where Z will be living and going to school in the hiatus before the courts in the United Kingdom become seized of any proceedings between the parents. If that is not the case, on the limited evidence I have heard from the mother, I have in mind the conditions which seem appropriate. However, allowing for the fact that circumstances may have changed in the last three months and as I have not heard from the father, I would give each party an opportunity to make submissions directed to conditions around:
a)Responsibility for booking and payment or flights;
eee)Travel arrangements back to the United Kingdom;
fff)Where and with whom Z will live and go to school immediately she returns to England and in the hiatus period before the courts in the United Kingdom are seized of proceedings;
ggg)Restraining each parent from leaving the UK pending contrary orders being made by the courts there.
Financial orders fall outside the 1996 Convention. I note that there was an agreement between the parties to draw $40,000 from the mortgage facility on the City D property and each receive $20,000 of those funds with which to relocate themselves and to tide themselves over.
Consequence of failure to comply with a condition of return
Conditions to return are usually framed as pre-conditions to return. That is, unless a condition is fulfilled, there will be no return.
Where conditions operate prospectively, it is necessary to have the conditions reflected as enforceable obligations in the contracting state where the person who is obliged to satisfy the condition is present and where the condition is to be performed. The pre-condition to return is that a left behind parent must do all acts and things necessary to obtain orders which are enforceable against themselves and/or the taking parent in the country of habitual residence.
The consequence of failure to comply with a condition to return, including a failure to obtain enforceable orders which reflect conditions which operate prospectively, is that the return order will be frustrated. That is, the child will not be returned.
Enforceability of conditions to return
Any conditions imposed should have force of law in both Australia and the United Kingdom, as required. The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) provides for recognition and enforceability of protective measures between Contracting States. Australia has been a party to the 1996 Convention since 2003. The 1996 Convention entered into force between Australia and the United Kingdom in 2012.
The 1996 Convention provides for the recognition and enforceability of protective measures between contracting states. Protective measures can be parenting orders but not all orders which parties want vis a vis each other are eligible for recognition or enforcement under the 1996 Convention. Article 3 is an inclusive definition of matters covered by the 1996 Convention. Article 4 is a definitive list of what is not covered by the 1996 Convention.
Additionally, direct judicial communication can be conducted in accordance with Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges[36].
[36] type="1">
I will provide a draft order but look to the parties and father to flesh it out with details of flights and whatever matters the parents can agree upon. If they cannot agree, each should submit a minute of order he/she seeks within 24 hours (or later today) and I will determine those subsidiary matters on the basis of the minutes and brief oral submissions.
If the parents think that they would benefit from a further VLA Hague mediation, one can likely be arranged. It may be that there is some scope for discussions now they know the outcome of the hearing.
Conclusion
For the above reasons I make the Order set out at the commencement of these reasons.
I certify that the preceding two hundred and eighty-seven (287) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 22 August 2019.
Associate:
Date: 17 September 2019
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