STATE CENTRAL AUTHORITY & KODENIKOS

[2010] FamCA 872

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & KODENIKOS [2010] FamCA 872

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Habitual residence

APPLICANT: The Director-General, New South Wales Department of Human Services, Community Services as State Central Authority

FATHER: Mr Kodenikos

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYC 7726 of 2009

DATE DELIVERED: 29 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 9 and 10 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Legal Services Unit, Department of Community Services

COUNSEL FOR THE FATHER: Mr Cook

SOLICITOR FOR THE FATHER: KP Lawyers & Barristers

Orders

1. That until further order the respondent father, Mr Kodenikos born … 1983 and/or any other person is restrained from removing the child N born … April 2009 (male) from the Commonwealth of Australia.

2. That the applicant Central Authority make such arrangements as are necessary to ensure the return of the child N born … April 2009 (male) to Greece forthwith in the company of Ms T, his mother, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

3. That, the respondent father, Mr Kodenikos born … 1983 surrender forthwith to the Central Authority, all current passports for the said child N born … April 2009 (male).

4. That the Central Authority is hereby authorised to collect from the Family Court of Australia any passports for the said child which have been lodged with the Court.

5. That the mother shall have custody of the said child and he shall reside with the mother from not less than two days prior to the time his flight from Australia to Greece is scheduled to leave Sydney Airport until a court in Greece with jurisdiction to make custody and or residence orders makes orders for the child’s custody and/or residence.

6. That the Respondent father Mr Kodenikos born … 1983 shall meet the reasonable costs of the child’s return to Greece, including airfares and any other necessary expenses, not less than seven days after such costs are incurred.

7. That any issue over payment of the cost of the mother’s return to Greece with the child is reserved.

8. That costs are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:       SYC 7226 of 2009

THE DIRECTOR-GENERAL, NEW SOUTH WALES DEPARTMENT OF HUMAN SERVICES, COMMUNITY SERVICES

Applicant

And

MR KODENIKOS

Father

REASONS FOR JUDGMENT

1. These proceedings have been brought by the Director-General, Department of Human Services, Community Services of New South Wales against the father of N who was born in April 2009 in Greece. The Director-General asks for an order that the father surrender the said child at the direction of the Department so that it can make arrangements to return the child to Greece in the company of his mother, but at the father’s cost. In short, this is an application of the Department which is the relevant Central Authority for the return of the child to Greece pursuant to the Family Law (Child Abduction Convention) Regulations 1986, which in Australia enforces the Convention on the Civil Aspects of International Child Abduction to which Australia and Greece are signatories pursuant to s 111B of the Family Law Act.

2. The father’s defence is limited to one issue. He asserts that the child “was not habitually resident in Greece at the time of his retention in Australia” (see the father’s written submission filed 5 April 2010 paragraph 1). The Central Authority, for its part argues that the child was habitually resident in Greece at the relevant time. It is the father’s case that the parties moved to Australia with the child on 2 July 2009, having left Greece a day so earlier with the intention of permanently residing here. The Central Authority says the parents came for a vacation. The outcome will depend not so much on which of the parents I believe in the light of the claimed objective facts which each party claims supports their case but more on what I find to be the germane facts. I say this because it is possible that the intention in coming to Australia might have been different for each party or even because one or both parties had no settled intention in coming here.

3. It is necessary to make formal findings on the non-contentious elements of the cause which must be established before an order for return can be made. My formal findings are:

   a)That the mother, Ms T, had rights of custody pursuant to Greek law over the child at the material times immediately beforehand if he was wrongfully removed to or retained in Australia.

   b)At that time she was lawfully and actually exercising those rights of custody or would have been doing so if he had not been wrongfully removed to or retained in Australia.

   c)If the child was wrongfully removed to Australia or retained here wrongfully, the removal and retention were in breach of the mother’s rights of custody.

   d)The appropriate Central Authority for Greece has on behalf of the mother requested the appropriate Central Authority for Australia to return the child to Greece.

   e)The proper Central Authority for Australia has accepted the request and has sought the return of the child by filing its application for orders on 17 December 2009.

   f)The application has been served on the father who has formally opposed the return.

4. The Central Authority says that because the child was habitually resident in Greece when, in late September 2009, the father retained the child in Australia contrary to the wishes of the mother he did so wrongfully and therefore an order for return must be made. The father says that, as the parties came to Australia intending to reside here permanently, his refusal to return the child to Greece; his retention, is not wrongful because the child was already habitually residing in Australia. It is, of course possible that the child was wrongfully removed to Australia in the sense that mother was tricked by the father into permitting such removal.

5. The father is aged about 27 years and was born in Australia. The mother is now 20 years old. She was born in Greece although both of her parents were born in Australia. Her mother moved to Greece as a baby and her father when he was a teenager. Her father speaks English but her mother speaks none. The mother learnt English at school for about 6 years but did not speak it at home. Until she came to Australia she had always lived in the same small town in Greece which has about 18,000 inhabitants and she had never been outside Greece until she came to Australia in July 2009. She is a Greek citizen but, because of her parents’ citizenships of and birth in Australia, has a descendant’s right to be granted Australian citizenship if she applies for it.

6. The father has both Australian and Greek citizenships. His parents live in a suburb of Sydney. His father runs a business and the father is currently employed by it. The father seems to speak Greek fluently. His English is also fluent. He had been living and working in Australia until, in February 2007, he went to Greece for what he said was a break from Australia. He had connections there. His sister and her husband live there. The father’s mother and father have spent a lot of time in Greece. They own a house there. The father’s father kept a motor vehicle there. Members of the family would use it when they were there. It was not usually registered but would be registered for the time the family member wished to use it. The father’s father allowed the father to use it while he was there. At first the father lived on his savings while he was in Greece. Then he got a job as a courier, working 6 days each week. He worked for his brother-in-law.

7. The father and mother met in March or April 2007. In about September 2008 they commenced to live together in the house in E, in Greece, which is owned by the father’s parents. It is the family home in Greece. They married in 2009 in a civil ceremony. The child, N, was born a little more than a month later. The mother alleges she intended to have a religious marriage in Greece in June 2010 when she also planned to have the child christened. The couple struggled financially but the father was able to get financial help from his parents.

8. According to the mother, in May 2009 one of the father’s sisters visited Greece. The father, she claims, told her that his sister had suggested he and the mother have a holiday in Australia so they could spend time with the father’s family. He proposed that she and the child could obtain a three month visitor’s visa so they could stay for up to three months but could “come home” earlier. The mother says she agreed to this idea.

9. The father did not need a visa, he had an Australian passport. The mother and child did not have Australian passports and needed visas. After some discussions between the mother and father which confirmed the holiday trip and other associated arrangements, the mother applied for Greek passports for the child and herself. On 26 June 2009 she received a short stay visa which permitted her and the child to remain in Australia as holidaymakers for up to three months but prohibited the mother from taking employment.

10. At some time in June, the father is claimed by the mother to have had coffee with the travel agent who he had engaged to obtain airline tickets for the trip to Australia. The travel agent had said he would give the family a discount on the cost of the tickets. The mother says that before leaving for Australia she did not look at the air tickets but assumed they were return tickets. The family arrived in Australia on 2 July.

11. The father’s version of events is significantly different from that of the mother. He claims that in June 2009 he told the mother that he was finding the financial struggle they were having too much and that living in Australia would be easier because he could work in his father’s business. The mother, according to his version, immediately agreed and they decided that when they arrived the mother would apply for Australian citizenship and both would apply for Australian citizenship for the child. In each case they were entitled to apply immediately when they arrived in Australia because of their Australian descent.

12. The father says he and the mother went to a travel agent he knew. There he purchased a one way ticket for himself but return tickets for the mother and child. He did this because the travel agent said in the presence and hearing of the mother, “You should book [the mother] and the baby a return ticket as it will be easier for [the mother] to obtain a visa when she shows the ticket at the Australian Embassy. You will not pay for the return ticket. I will not set a date to return and I will just cancel it.” If she heard what the travel agent said, she must have understood it. The father took the advice of the travel agent.

13. Before leaving Greece, the mother did something which superficially strongly supports the father’s version of events. She obtained her father’s expired Australian passport and her mother’s expired Greek passport from them to take to Australia. The father says she did this so she could lodge them with the Australian Department of Immigration and Citizenship in support of the application for citizenship she intended to make when she got to Australia. There is no doubt that these passports were lodged with the Parramatta office of that department on 26 August 2009 with the mother’s current Greek passport. I do not know whether the father or the mother lodged these.

14. The family stayed with the father’s parents when they arrived. The mother said that the accommodation was cramped and inferred that it was inappropriate for anything other than a short stay. The home is a rented three bedroom two bathroom unit. In addition to the family and the father’s parents, the father’s 13 year old sister lived there. During the working week, the father’s parents also cared for the 16 month old son of the father’s other sister while she was at work.

15. The mother explained why she brought her parents’ passports to Australia. She said that before the family left for Australia the father asked her to ask her parents if they have proof of their Australian citizenships because it would be wise to have it “just in case we have any problems”. She says that when she requested they do so her parents gave her their expired Australian passports which she then took to Australia. In fact the mother’s mother’s passport is her expired Greek passport. It discloses her birthplace to be Australia.

16. Shortly after arriving in Australia the father suggested the mother should apply for Australian citizenship, as should they for the child. The mother agreed and saw the father and his mother prepare the application for her. She says they asked questions such as her father’s date of birth so they could fill in the form. This is strange because they could have used the mother’s father’s Australian passport to establish the answer to this question. Even stranger is the mother’s claim in her original affidavit in these proceedings that, when on the form being completed the father gave it to her and asked her to sign it, her response was: “What are these papers you want me to sign” because she not know what she was being asked to sign as her English was limited. I shall return to the issue of her English ability, especially her ability to read English. When it was explained that these were the citizenship papers, she signed the forms which the mother says she understood were sent to the Department of Immigration and Citizenship with the child’s and her own Greek passports. No mention is made by the mother of the lodgement of her parents’ passports and no explanation is given as to why, if the first suggestion to the mother to seek Australian citizenship for herself and the child occurred after her arrival in Australia, her parents’ passports had been brought to Australia. Her parents live permanently in Greece.

17. It is the mother’s claim that she believed the family had come to Australia for a vacation so it was unexpected and disappointing that, about ten days after the family had arrived, the father announced he had decided to commence working for his father. The mother opposed this plan because it would undermine her enjoyment of the holiday. She told the father that if he persisted with this plan she might return to Greece with the child. Eventually the father convinced the mother it was a good idea for him to work because he would make some money to take back to Greece.

18. In August, the mother discovered she was pregnant. She says she informed the father. By this time she was feeling uncomfortable living with the father’s family.  She was also lonely because she had few friends here and the father was usually at work. She felt isolated because she did not speak English. She informed the father she wished to return to Greece to her family. The father asked her to stay a little longer so she agreed.

19. In late August, when the mother again told the father she wished to return to Greece, he became angry and suggested she return without him and the child. She says he said he would return with the child about two weeks after her because he wanted his family to be able to spend more time with the child. The mother says she reluctantly agreed to this arrangement. She was not comfortable with it because she had always been the child’s principal caregiver, but agreed because the father’s family would not be returning to Greece for some time and would not be able to see the child often. She then collected the child’s passport and her own from the Department of Immigration and Citizenship and gave the child’s passport to the father so he could bring the child back to Greece.

20. While she was at the Department an officer informed her that her application for citizenship was incomplete because she had failed to include a copy of her father’s birth certificate. She said she told the father of this. If she did, she must have decided to obtain one when she went back to Greece and send it to the Department.  If this is true, it seems to indicate an intention to obtain Australian citizenship for herself and the child despite not wishing to live in Australia. This makes the fact that she brought her parents’ passports to Australia less indicative of a wish to migrate when she came here for the first time.

21. At about the same time the mother asked her mother in Greece to arrange her return ticket with the travel agent. Her mother then learnt that it had expired six weeks after the mother’s trip to Australia. According to the mother she was perplexed by this. The inference she wishes to make is that the father tricked her into believing she was coming to Australia for a holiday but, in effect, had arranged and paid for a one way ticket for the mother and the child which appeared to be a return ticket. He had bought himself a one way ticket with no provision in it for return. The mother says the father claimed the travel agent had made a mistake with the tickets when the mother confronted him about this. The mother returned to Greece on 3rd September 2009.

22. From the time the mother arrived in Greece she, not unnaturally, telephoned the father frequently, both to speak to him and to enquire about the child. She was often unable to speak to the father and was given excuses by members of his family which initially made her feel that he may be avoiding her. She, nevertheless, accepted the excuses which were proffered.

23. On 23 September the mother had a miscarriage. She had been 12 weeks pregnant. She must have become pregnant in very early July or late June; that is, about the time the family arrived in Australia. In his affidavit, the father said that the mother did not tell him of her pregnancy at any relevant time and that he did not believe at the time of swearing it that the mother had been pregnant because there had been no sexual intercourse between them since their arrival in Australia. By then, they had become estranged. He said in his oral evidence that he had taken an ultrasound of the foetus to a Dr R who gave him advice to the effect that the mother must have become pregnant earlier than the mother alleges; that is, when they were still in Greece.

24. Dr R was not called to give evidence, but I do not understand how such evidence could be thought by the father to confirm his claim that the mother was never pregnant as she says. I have no doubt that the father was, when he gave that oral evidence, still trying to say the mother had not been pregnant as part of his case to deny that the mother had ever told him she was pregnant or had given that as a reason she wished to return to her family in Greece. He said she only told him in August that she was going to return to Greece and gave her reason as being unable to “handle it here anymore”. The lack of rationality involved in saying in cross-examination that he still maintained the mother had not been pregnant, makes his evidence extremely difficult to accept. The father had obtained an ultrasound of the mother’s pregnancy from Greece. He showed it to a doctor. Then in the face of having done this, argued that the mother must have been more advanced in her pregnancy than she claims, despite seeing Exhibit I which was tendered by the Central Authority, it being a medical report dated 23 September from the mother’s Greek treating obstetrician/ gynaecologist. He did not appear to be thinking rationally and seemed to me to make factual claims and assertions based on his emotions and needs rather than facts.

1. When the mother miscarried she says she telephoned the father at his parents’ house. He did not answer and his father said he was out. She explained that she needed to tell the father she was no longer pregnant. The father’s father said he would convey her message but the father did not return her call. After a few days she telephoned again and spoke to her father-in-law and asked that the father call her. She said she wanted to know when he and the child were returning. The father-in-law is then alleged to have told her the father and the child would not be returning. She says she then demanded that the father call her and said she would be returning to collect the child.

2. The father did not return her call so she arranged to return to Australia and arrived on 8 October 2009, just two weeks after she had had the miscarriage. When she arrived, she was not permitted to take the child into her care. Ultimately, she obtained the legal advice which resulted in these proceedings. On 4 December 2009 a magistrate made interim consent orders that the child live with the mother for a little less than 50% of the time.

3. The mother through the Central Authority, relies on the following facts surrounding her coming to Australia to support her case that she came here temporarily. They are:

   a)She was only 19 years old when she left Greece and at all times before that she lived in a village in regional Greece. - T his fact is undeniable but I do not regard it as telling. Many migrants leave their home and family to live in Australia at this age.

   b)She spoke English poorly. - This claim is not as telling as the mother would have the Court believe, although I accept that her spoken English was not good, as is the situation with most migrants from non-English speaking countries.

   c)Her family live in Greece close to the mother’s home; the one in which the family lived before coming to Australia. - This is in the same category as a).

   d)The mother travelled to Australia on a three month visitor’s visa notwithstanding her right to apply for citizenship. - This is consistent with each party’s version of the relevant facts.

   e)The purpose of the family’s visit was to have a vacation; something which the father has, it is alleged, confirmed by the fact that he filled out the incoming passenger cards for the mother and child asserting that they were on a visit to Australia for three months. - The father did fill out the passenger cards for the mother and the child in this way.

   f)The family brought none of their possessions of sentimental value. – I accept that they brought few and that this is more consistent with the mother’s case.

   g)Both the mother and child travelled on return tickets. - This is true.

   h)There was no farewell party when the parents left Greece. - I accept this to be the case although the father claimed a night out was a farewell party.

   i)The possessions the family carried to Australia were within its ordinary travelling allowance. - This is likely to be true and supports the mother’s version rather than that of the father.

   j)The mother returned to the family home in Greece taking some clothing and household effects she had bought in Australia. - I do not regard this as having any probative value.

4. The mother’s affidavit raises further matters and details in support of her claim that the family came to Australia for a holiday. Those which I regard as able to be convincing are:

   a)The family only took what it needed for a holiday when it came to Australia and left most of their possessions in Greece. Items which would be expected to be brought here if the family was staying permanently, such as clothing, the child’s new cot and play bed purchased on 4th and 2nd June 2009 respectively, were left in the home. Photo albums including wedding and baby photos, the father’s motor bike and the family dog were not brought with them. - The father gives answers to each of these assertions which, if true, would indicate the likelihood that the family did migrate.

   b)The father purchased new tyres for his father’s Jeep on 26 June 2009 for which the mother’s parents paid €261.91. -This issue will be dealt with in more detail below.

   c)The family home in Greece was set up and left in a condition appropriate for the family to be away for a short holiday then return to live in it. – If this is true it supports the mother’s case. The father gives an explanation which is more favourable to his case.

   d)The mother and, so far as she knows, the father told nobody they were leaving for other than a holiday. - This does not seem to have been challenged by the father, except inferentially on the issue of the alleged farewell party. It obviously supports the mother if her allegation is found to be true.

   e)The mother held an interest in a home unit in Greece, subject to her grandmother’s life interest. In January, May and June 2009 upgrading work was carried out on it at a total cost of €2620. The renovations were done because the family, who lived elsewhere, planned to move into the unit in mid 2010 after the religious wedding. - The father’s response to this is that despite the improvements which were made the home was still unliveable. This does not undermine the mother’s case that she and her parents would not have undertaken renovations at their cost if the mother and father were migrating.

5. According to the father a move to Australia was specifically mentioned in June 2009 when he remarked to the mother that it was financially difficult to live in Greece and that they should “go to live in Australia” where he could work in his father’s business and life would be a lot easier. He says the mother agreed. When he went to the travel agent to purchase tickets he was advised to purchase return tickets for the mother and the child because it would be easier to obtain a visa for the mother. He was not required to pay for the return tickets and was told that the travel agent would not set a return date and would simply cancel the return tickets at a later time. He says that prior to leaving for Australia the mother obtained her parents’ Australian passports to lodge with her application for citizenship by descent when they arrived in Australia. He said his and the mother’s intention to apply for citizenship developed before they left Greece. The father denied that it was ever his and the mother’s intention in coming to Australia to limit it to a holiday and he denied saying anything to suggest that the trip might be or would be a holiday.

6. The father’s counsel argued that certain facts and circumstances show that the father and mother abandoned their residence in Greece to take up permanent residence in Australia on their arrival here. Those facts and circumstances are:

   a)The travel arrangements involving one way tickets. - This matter could support either version depending on who is believed.

   b)The disposal by the parents of their personal possessions. - The determination of the facts will determine which case those facts support.

   c)The bringing to Australia by the mother of her parents’ passports. - This is to be considered with each party’s version of events.

   d)A farewell party for the parents which occurred only a short time before they left for Australia. - The mother disputes it took place.

   e)The mother’s application for Australian citizenship for herself and the child. - This matter is neutral to deciding where the truth lies on the relevant issue in view of each parent’s explanation for what occurred.

   f)That the mother contracted to have a year’s use of a local fitness centre on 17 July 2009. - I shall discuss this below.

   g)The parents attempted to obtain Medicare cover and an immunization book for the child. - It was the father who did this. The mother had him immunized in Australia because he was due to be immunized while he was here and would have had to wait more than an additional month to be immunized in Greece.

   h)The mother opened a bank account. - This was a practical necessity for her.  It has no probative value.

   i)The mother sought parenting orders in the Federal Magistrate’s Court. - These create no inference favourable to the father’s case. They were necessary to allow the mother to have proper contact with the child in the interim before the matter would be dealt with finally in Australia or Greece.

7. In addition to these reasons for claiming that the child obtained permanent residence in Australia the father pointed out that the home the family lived in in Greece was owned by the father’s mother and the household contents which were left behind were the property of his mother. He says he brought all his clothes to Australia and that objects which the mother says he left behind and would not have done so had he come to Australia permanently had never been owned by him. He says the mother brought most of her clothing and jewellery and other possessions to Australia. He said the cot which had been used by the child was sold to a friend in Greece and that there were few wedding photos, no photo album and that the parents never intended to have a religious ceremony. He said he had a motor bike in Greece but sold it prior to leaving. The mother says he informed her for the first time in September 2009 that he had sold it.

8. The father denies purchasing new tyres for the jeep and says the tyres were purchased for another vehicle which he had nothing to do with. He also says that before leaving Greece the family dog was given to a friend who he names and that all close friends and his sister knew before the family left Greece that they were departing for good and that the mother and he had the farewell party at a Nightclub on 27 June 2009.

9. It is his case that he and the mother were in such financial straits that he commenced working for his father the day after his arrival in Australia, and notwithstanding the moneys spent on the unit in Greece, it remains in an uninhabitable state.

10. The mother denies that they were struggling financially but does not suggest they were doing well. She agrees that she and the father attended the nightclub on 27 June. She claims she and the father only had a night out at the nightclub with the father’s sister and brother-in-law. I accept that the nightclub outing was not a farewell party. The mother’s description of this incident is more detailed and inherently believable.

11. The mother’s reliance on her inability to speak good English is disingenuous. Although her spoken English is likely to be poor because her pronunciation is probably poor, she studied English in Greece and used English at a relatively advanced level in obtaining a Diploma in IT Skills as an external student of the University of Cambridge. She obtained this diploma in late 2004. In late 2005 she obtained a Certificate of Competency in English by passing, also as an external student, an English as a second language examination by the University of Michigan. These qualifications were gained when she was about 13 or 14 years old. This enables me to say that she probably had, and knew she had, better prospects of learning to speak English quickly than is usual for many migrants who have come here from countries where they are not native English speakers and their alphabet uses different characters. I do not regard the mother’s defective English to be indicative of her propensity to migrate here.

12. The three month visitor’s visa and three month passenger cards are both put forward by the mother to support her case that the family came for a holiday. The father’s explanation for these, with the payment for only the inward air journey and cancellable return tickets, would, prima facie, be credible if he is regarded as otherwise a credible witness. His failure to provide evidence from the travel agent might harm his case if, more naturally, the travel agent should have been his witness. This failure was not explained by the father, but a solicitor who is employed by the Director-General explained that the mother’s mother had attempted to obtain evidence from the travel agent. He claimed to no longer have records of the tickets. It seems that nobody sought to obtain evidence from him about how the tickets came to be one way tickets or what was said and by whom before their purchase and whether the mother was present when the tickets were purchased. The result, based on Jones v Dunkel (1959) 101 CLR 298, would be that it is to be assumed that had he been called his evidence would not have assisted the father if he should have been the father’s witness. In the circumstances, I do not regard that assumption as valid. The mother’s mother actually approached him for evidence. He should be regarded as a witness either party might be expected to call, so no inference is to be derived from the failure to call him. That the father filled in the mother’s and the child’s passenger card for a three month visit and obtained three month visas for them and that the mother came on her Greek passport rather than seek Australian citizenship for herself and the child before she arrived and applied for it after she arrived using her parents’ passports which she brought here, do not indicate one way or the other the actual intent of the mother or father in coming to Australia. Neither does the purchase by the father of what were effectively one way tickets. It is the respective credit of the parties which is most signified in view of their conflicting explanations for what it objectively knows to have occurred in relation to these matters.

13. The mother relies on the purchase of tyres for the Jeep to indicate an intention by them both to return to Greece rather than stay in Australia. The father’s response to this claim is that he did not purchase new tyres for the Jeep. He says, and backs it with a photograph of the Jeep which must have been taken before the family came to Australia because the father is in the photograph, that the licence plate number of the Jeep differs from that of the vehicle to which the tyres were fitted. He says the tyres were fitted to a vehicle with plate number Z …09 while his father’s car’s plate is H …98.

14. The mother has produced a note written in hand and signed in Greek which contains the stamp of the tyre fitting firm which purports to have supplied the tyres.  It was composed on 28 December 2009, obviously for the purpose of this litigation. It states that on 27 June 2009 the tyres were supplied for the Jeep H…98 on 27 June 2009 “owned by Mr [Kodenikos]” the father. The mother’s mother sent it to her after the mother read the father’s claim that the tyres were installed on Z…09. The Director-General however has since obtained and produced the consignment note from the suppliers of the tyres to the tyre fitting firm which supplied the handwritten note. It shows the tyres were delivered on 10 June 2009 by the wholesale suppliers to the tyre fitters who say they supplied them to the Jeep. In the formal body of the consignment note there is nothing to directly indicate who purchased the tyres from the tyre fitter or the registration plate number of the vehicle to which they were fitted. The consignment note bears what appears to be a stamped number Z…09. This is said by the father to be the number plate of the vehicle to which the tyres were fitted.

15. One can only speculate on how the father could claim to know this. There is nothing except the same pattern of letters and numbers which would indicate that the stamp refers to a car registration number plate. There appears to be little reason why the registration number of the car to which the delivered tyres were fitted two weeks later should be recorded on the consignment note. The evidence makes it very likely that the father has knowingly falsely made up the claim that the Z…09 stamp refers to a number plate. Despite the failure of the Central Authority to call the mother’s mother and the person from the tyre fitter who wrote the note, there is compelling documentary evidence, which the Central Authority tendered, which leads to this conclusion. The evidence is the untranslated copy of the relevant consignment note together with four other consignment notes with different document numbers on them. At least three of the other four consignment notes can be seen to be to the same tyre fitter with the same telephone number. All consignment notes which are able to be read are for entirely different types of tyres delivered on different dates; the tyres said to have been fitted to the father’s father’s Jeep allegedly being EAK/245/70R16 Latitude Cross – II tyres, where those subject of one of the other delivery notes to the same fitter is for two types of tyre, EAK 165/70R13 Energy E3B and EAK205/55VR16 Energy Saver at different prices to the consignment for the tyres in question which, from the note appear to be Cross Country tyres. The name “Cross” indicates this, as one might expect for a Jeep.

16. The point is, that each of the four additional consignment notes is stamped Z…09 so that could not be a reference to the one vehicle to which all the tyres subject of all five consignment notes were fitted. I have been able to establish the above although I cannot read Greek, because the names of the tyres are in English and telephone numbers and address numbers are no different in Greek to English. I have compared the Greek in the part of the consignment note which has been translated to be the tyre fitter who provided the handwritten note with the Greek in the same sections on two other consignment notes and found them to be identical.

17. It has not come as a surprise that the father has been shown to be a dishonest witness. The impression he gave me throughout his oral evidence was consistent with this finding. I find that the mother was a much more credible witness. Where her evidence conflicts with that of the father I regard it as much more likely to be the truth or closer to the truth than the evidence by the father despite some dissatisfaction with the veracity of her evidence. 

18. I am satisfied that the family brought no or few possessions of sentimental value, travelled with luggage which was appropriate for a holiday rather than a permanent stay, left their home in Greece ready for their occupation on return from a holiday, told nobody, so far as the mother knows, that they were going away for more than a short holiday and started to renovate the mother’s grandmother’s home to prepare for moving into it on their religious marriage which was expected by the mother to be in mid 2010.

19. There were, however, some things which were done before leaving Greece to travel to Australia which I accept happened as the father says. These are all matters which the mother believed occurred in a way which was consistent with coming to Australia for a holiday because the father had taken action but had not told the mother what he had done.  In these instances he gave her a story which was, I find, intended to make her believe the trip was a holiday while his actions were consistent with what I regard as likely to have been his already formed intention to return to Australia permanently and trick the mother into coming here and bringing the child. The disposal of the family dog, the father’s motorcycle and the child’s cot, and the purchase of what were effectively one way tickets, are examples. It is noteworthy that the mother’s parents paid for the tyres of the father’s father’s Jeep and the renovations to the mother’s grandmother’s house in preparation for the mother and father moving into it later. It is consistent with this and my assessment of the father’s character that he would allow this to occur in order to assist in his deception.

20. The father relies on obtaining an immunization and health record book for the child and attendance at a child health clinic to support his claim that the mother came here with the intention of staying. It was the father who obtained the book, and it is he who took responsibility for it and seemingly from it, for ensuring the child went to the clinic, as can be seen from p. 29 which is part of the annexures to his affidavit sworn on 20 January 2010.

1. A matter which, remotely, might seem to support an attitude of the mother which was consistent with migrating here is her joining of a physical fitness club in July 2009. This is because she signed what purports to be a contract in which she agreed to a monthly fee by way of direct debit for a minimum of 12 months. She had been taken to the gym by the father’s mother who had told her that the only way she could use it was by signing the contract. She did not pay, her mother-in-law did, but payment was not for a year, it was for one or two attendances by the mother. I am not satisfied that this indicates any intention by the mother to stay in Australia. Any ability of the gym to obtain 12 monthly payments would be dependent on the mother permitting a direct debit from an account she holds with funds in it. There is no account information about this in the documentation the mother provided the gym. In any event, if the account she held was closed and she returned to Greece she would not be forced to pay for use of the gym she did not have.

2. I am quite satisfied that the mother never intended to stay in Australia for more than three months and did not intend that the child stay for more than a short time longer than this.

3. The child’s habitual residence depends on the habitual residence of his parents at relevant times. The habitual residence of a child is that of his parents when they live together, but it cannot be changed unilaterally by one parent without the consent of the other or without one gaining exclusive and lawful custody of the child.

4. Until not long before the parties left for Australia the child, like his parents, was habitually resident in Greece. His parents were settled there, the mother having been born there and never having left. They were married at the time of the child’s birth after having lived together in a house which was owned by the father’s parents for about six months. The father had been living and working in Greece since February 2007. At the time the family came to Australia, the mother probably thought she was leaving for a holiday of about three months and did not contemplate changing her habitual residence from Greece.

5. Until not long before the family came to Australia the father, too, probably regarded himself as being settled in Greece. This probably continued at least until his sister arrived in Greece from Australia. It was then that the father either decided to return to Australia permanently or to have a holiday here. If it was while he was in Greece that he decided to return, he must have realised that the mother would not come permanently and decided to trick her into coming here and bringing the child. Alternately, he may, although it is much less likely, have originally decided to come for a holiday to Australia but after he arrived decided to stay. Whichever it was, the mother never ceased to be habitually resident in Greece and the father never obtained her consent to retain the child here or obtained exclusive custody of the child. The only consent he obtained from the mother was to bring the child here for a holiday, and that was probably obtained by false pretences. Nothing occurred which changed the child’s habitual residence from that which it had been when both parents were habitually resident in Greece.  The child retained his Greek habitual residence on leaving Greece and on arrival in Australia and still holds it.

6. If the father tricked the mother into bringing the child to Australia, he has wrongfully removed him to Australia in breach of the mother’s rights of custody which she continued to exercise until she returned to Greece believing that the father would return with the child after a short time. In those circumstances, she continued to exercise her rights of custody or, if she did not, it was because the father wrongfully retained the child here. If the father did not decide to stay permanently in Australia before he left Greece and if he decided to stay after arriving here, he wrongfully retained the child here when he failed to return to Greece, as he told the mother he would, thereby tricking her into returning to Greece without the child and thereby preventing her from actual exercise of her rights of custody, rights which she would have exercised had she not been tricked.

7. The above findings require me to make the orders the Central Authority seeks with amendments to meet the current situation including to permit the mother to accompany the child back to Greece because there has been no attempt to suggest any reasons why the child should not be returned to Greece for custody proceedings, if any, to be contested there. I do not intend to require the father at this stage to meet the mother’s costs of return. Such an order could arguably amount to a costs order. He should meet the child’s costs of travel for return because the Central Authority sought such an order and I was informed the only issue was that over his habitual residence. I shall reserve the issue of the cost of the mother’s return, as I shall also reserve the issue of costs between the parties.

8. To ensure there is no dispute over who should take care of the child during the trip and after he arrives in Greece and to get him better prepared for the trip and his life in Greece immediately on his arrival there I shall made orders, because they are most likely to be in the child’s best interests, that he shall reside with the mother and remain in her care from two days before he is due to travel to Greece with her until a Greek court with jurisdiction makes orders for his custody and/or residence. I do not know whether or not the father will be returning to Greece, either permanently or temporarily.

9. I shall make orders which accord with the above.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on

29 September 2010.

Associate:     

Date:              29 September 2010