State Central Authority & Metin
[2020] FamCA 535
•7 July 2020
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & METIN | [2020] FamCA 535 |
| FAMILY LAW – CHILD ABDUCTION – where child sought to be returned to Turkey under the 1980 Convention – bifurcated hearing due to COVID-19 pandemic restrictions on international travel. FAMILY LAW – CHILD ABDUCTION – where return application was filed on 16 April 2020 – where State Central Authority alleges that children were wrongfully retained in May 2019 – where respondent mother alleges that children were retained in February 2018 as a consequence of which reg 16(2) of the Family Law (Child Abductions Convention) Regulations 1986 (Cth) would apply, the return application being an application filed more than one year after the alleged wrongful retention. FAMILY LAW – CHILD ABDUCTION – wrongful retention – where children are found to have been first retained by the mother in March 2018 and therefore, reg 16(2) is activated and the respondent has an opportunity to establish that the children had become settled in Australia. FAMILY LAW – CHILD ABDUCTION – habitual residence, where habitual residence is discussed by reference to finding the children were first retained in March 2018, but if the court is wrong also if they were retained in May 2019 – division of authority in international jurisprudence around habitual residence discussed – whether previous “rule” that where both parents share equivalent parental responsibility, one parent cannot unilaterally change the habitual residence of a child still applies following the adoption in Australia of the test for habitual residence being an enquiry about the extent to which a child has integrated into domestic and family life in the state in which the child is retained – manner in which a parent can unilaterally change the habitual residence of the child discussed – habitual residence will not change by virtue of parental intention alone but may change in accordance with child’s lived experience of being integrated to some degree into the community and with any age appropriate orientation of the child’s perspective on where the child belongs. FAMILY LAW – CHILD ABDUCTION - relevance of child’s state of mind to identification of habitual residence. FAMILY LAW – CHILD ABDUCTION – whether the children were settled in accordance with reg 16(2) – where children found to be settled – assistance of a reg 26 report. FAMILY LAW – CHILD ABDUCTION – where children are found to be settled – Family Law (Child Abductions Convention) Regulations 1986 (Cth) ceased to have application and the application to return is dismissed – parents have liberty to apply in relation to parenting orders from this Court. FAMILY LAW – PRACTICE AND PROCEDURE – necessity to hear matter electronically due to COVID-19 restrictions – specialised Hague mediation – direct judicial communication. |
| Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Evidence Act 1995 (Cth) European Union Regulation (EC) No 2201/2003 jurisdiction, recognition and enforcement of matrimonial and parental judgments Family Law Act 1975 (Cth) Family Law (Child Abductions Convention) Regulations 1986 (Cth) Family Law Rules 2004 (Cth) |
| A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre Intervening) [2014] 1 FLR 111 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 Handbury & SCA and Anor [2020] FamCAFC 5 HZ v SCA (2006) 35 FamLR 489 In re H (Children) [2015] 1 WLR 863 In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 In re R (Children) [2015] UKSC 35 In the matter of C (Children) [2018] UKSC 8 LK v Director-General, Department of Community Services (2009) 237 CLR 582 Mercredi v Chaffe (2010) Case C-497/10 PPU Monasky v Taglieri 589 U.S.__ (2020) Office of the Children’s Lawyer v. Balev [2018] 1 SCR 398 Punter v Secretary for Justice [2007] 1 NZLR 40 Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 Re B (Minors) (Abduction) (No. 2) [1993] 1 FLR 93 Re LC (A Child)(Custody: Habitual Residence)(Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1 Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Metin |
| INDEPENDENT CHILDREN’S LAWYER: | Kristy Hams |
| FILE NUMBER: | MLC | 3738 | of | 2020 |
| DATE DELIVERED: | 7 July 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 15,16, 18 & 19 June 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Michelle Wilson |
| SOLICITOR FOR THE APPLICANT: | Department of Health & Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Holly Renwick |
| SOLICITOR FOR THE RESPONDENT: | Nicholes Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Debra Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Southern Family Law |
ORDERS
The application of the State Central Authority filed on 16 April 2020 for the return of the children, X, born … 2011/… 2012, and Y, born … 2014, to Turkey pursuant to the Family Law (Child Abductions Convention) Regulations 1986 be dismissed.
With the exception of the order requesting the appointment of the independent children’s lawyer, all previous orders including those prohibiting the removal of the children from Australia, be and are hereby discharged.
I reserve to the requesting parent father, the respondent mother and the independent children’s lawyer liberty to make oral application for parenting orders, by consent, in relation to the children. Providing that each parent and the independent children’s lawyer are accorded procedural fairness, I excuse the parent from filing application, response or affidavit evidence in support of his/her/their application for orders to be made.
Any party wishing to utilise liberty to apply to so on notice to all other parties and contact my Chambers by email, ….
Any solicitor who acts for the requesting parent in relation to parenting matters file and serve a Notice of Address for Service I relieve the father from compliance with Rule 8.05(4)(a) of the Family Law Rules 2004 so that he may have an address for service outside Australia provided that service can be effected by email.
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 & Metin 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 3738 of 2020
| State Central Authority |
Applicant
And
| Ms Metin |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Parties
Relevant history
Direct Judicial Communication
An overview of the law
Bifurcated hearing (COVID-19 considerations)
Issues
Issues arising from the primary position of the applicant SCA
Issues arising from the primary position of the respondent mother
Issues to be determined
The Evidence
Onus of proof
Standard of proof
Findings of fact
Documents relied upon
Regulation 26 report
The witnesses of the parties
Impression of witnesses who were cross examined
The father (SCA witness)
Mr Q (SCA witness)
Mr P (SCA witness)
Mr O (SCA witness)
Mr M (SCA witness)
The mother
Mr W (Mother’s witness)
Ms T Metin (Mother’s witness)
Witnesses of the parties who were not required for cross examination
Mr N (SCA witness)
Mr R (SCA witness)
Ms S Metin (mother’s witness)
Discussion and conclusions on issues to be determined.
When were the children first retained in Australia by the mother?
Were the children habitually resident in Turkey immediately prior to the mother first retaining them in Australia?
If the application filed 16 April 2020 was filed more than one year after the mother first retained the children, are the children now settled in Australia?
Conclusion
Introduction
By an application filed on 16 April 2020, the applicant State Central Authority (“SCA”) seeks the return of X, aged eight years,[1] and her brother Y, aged six years, to Turkey pursuant to reg 15 of the Family Law (Child Abductions Convention) Regulations 1986 (“the Regulations”). The Regulations give expression to Australia’s obligations under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) which entered into force between Australia and Turkey on 1 August 2000.
[1] It is common ground that X was born on … 2011 but that the parents registered her birth as having occurred on … 2012 in order to avoid a presumption that X was the child of the man to whom the mother was still legally married when X was born. It is also common ground that X celebrates her birthday as … 2012 and considers (incorrectly) that she is eight years old.
The matter proceeded over four hearing days on the Court’s Microsoft Teams platform. There was extensive cross examination of witnesses, including witnesses from Turkey for whose evidence we sat extended court hours to receive. [2]
[2] Evidence from Turkey was received through an interpreter between the hours of 1:00 p.m. to 7:00 p.m. Melbourne time which is 6:00 a.m. to 12:00 noon in Turkey.
I have dismissed the application of the SCA on the basis that it was instituted more than one year following the wrongful retention of the children by the mother and that the children have now become settled in Australia.
Prior to the commencement of the hearing, the parents participated in specialised Hague mediation at the Family Dispute Resolution Service of Victoria Legal Aid as arranged by the Independent Children’s Lawyer (“ICL"). The mediation was run over three days with co-mediators who are trained in international family matters. It is provided free of cost to the family. Amongst other things, the parents are encouraged to prepare for outcomes including the outcome which he or she does not seek on this return application. In closing addresses, the Court was informed that there were advanced negotiations between the parents as to what orders may be agreed to when the return of the children to Turkey is either ordered or refused. I have reserved to the parents liberty to apply for parenting orders under Part VII of the Family Law Act 1975 (Cth) and indicated that any such application will be conducted without undue formality and at a time convenient for the parents. The father has engaged an Australian solicitor who practices family law in Melbourne but who is currently in Turkey.
If the parents are unable to reach an agreement about parenting arrangements going forward and one or both parents seek to proceed, this Court will determine the parents’ applications at a defended hearing at which the father can appear electronically. For as long as pandemic restrictions remain in force in this jurisdiction, the mother will also participate in any contested parenting proceedings electronically.
Parties
The SCA filed this return application at the behest of the father to whom I will refer as “the requesting parent” or the “left behind parent” or “the father”. The respondent to the application is the mother. I will refer to the mother and father jointly as “the parents” because the father is not a party to the proceedings.
On 16 April 2020, I requested that an ICL be appointed to represent the interests of X and Y. In due course, Ms Kristy Hams, solicitor, was appointed. She has represented the children’s interests well within the confines of these forum selection proceedings.
Relevant history
The father is 33 years old and a citizen of Turkey. He has a Turkish passport but has never travelled outside Turkey. He is a self-employed shop owner and retailer. The mother was born in Australia, raised in Melbourne and has dual Australian and Turkish citizenship. She is 31 years old. The mother is currently in paid employment in Melbourne.
The parents met in Turkey and commenced a relationship in 2009. They lived together from late 2010 and were married in the Islamic faith on … 2010. The wife had been previously married in 2005 and was legally divorced in ... March 2011. The mother and father had a civil marriage ceremony in B Town in Turkey on … July 2011.
X and Y were born and raised in Turkey. They are Turkish citizens by birth and obtained Australian citizenship in late 2017 as organised by the mother.
In late 2017 the mother was ill. She was misdiagnosed with cancer. The mother deposes that, at about the same time, she became aware that the father had an extramarital affair. The father denies that he was unfaithful to the mother.
As to the parents’ life together, the father’s evidence is that the parental relationship was happy and in his initial affidavits, he made no mention of any serious issues. The mother’s evidence details allegations of significant family violence by the father against her. The allegations include verbal and emotional abuse, physical abuse including alleged attempted strangulation, threats to kill her and members of her family, sexual abuse, and financial abuse and controlling behaviours, including being restricted in her communication and opportunities to spend time with her family. I make no findings in relation to family violence in these proceedings at this stage.
In February 2018 the mother’s family purchased airline tickets for the mother and children to visit Melbourne departing City C, Turkey on 18 February 2018 with return tickets booked for 10 March 2018. The father signed the children’s applications for the Australian passports on which passports the children travelled. The children are entitled to, but have not applied for, Turkish passports.
It is not controversial that the mother obtained the father’s agreement to bring the children to Australia on the basis that she and the children would be returning to Turkey on 10 March 2018. The children understood that they would be returning to Turkey.
Prior to leaving Turkey, the mother advised X’s school that X would be absent from school because she was going to Australia from 18 February 2018 to 5 March 2018, to visit the mother’s grandmother who was very ill. The mother admits that the anticipated date of return is incorrect and that, whilst her maternal grandmother is elderly and frail, she is not at death’s door and seeing her was not the predominant reason for the mother and children to visit to Australia. The mother’s evidence was that she felt impelled to justify X’s absence from school because of strict Turkish laws around children not missing out on school and unexplained absences. The mother informed the school in Turkey that X would be back by 5 March 2018 because she had not sighted details of the flight reservations made by her family which provided for a departure back to Turkey on 10 March 2018.
The children arrived in Melbourne on 20 February 2020, but were not returned to Turkey on 10 March 2018 as planned. The requesting father and the respondent mother provide contradictory and disparate accounts regarding at what stage the mother advised the father that she and the children would not be returning to Turkey.
In summary, the mother’s case is that in late February 2018 she told the father in a WhatsApp or audio call that their relationship was over and that she and the children will not returned to Turkey: [3]
During this time I said to [the father] words to the effect of “we’re not coming back, we’re done” and “I am going to enrol [X] in school in Melbourne, we’re not coming back” to which [the father] responded with words to the effect of “don’t enrol [X], you will come back, what’s the point.
[3] Affidavit of the mother sworn 4 May 2020, [28].
The mother deposes to having enrolled X in Grade 1 at E Primary School within the first two weeks of their arrival in Australia. Y was enrolled at F pre-school a few months later as he had first to complete a course of immunisations.
The mother deposes that: [4]
30. On 1 March 2018 I had a text message exchange with the father in which my intention was made clear that we were not returning to Tukey. I sent these messages in Turkish and I have arranged a translation of the messages from Turkish to English [For the purpose of relying on them as evidence in this proceeding].
The mother annexes translated text messages in which, inter alia, the mother tells the father that she does not want to make a new life with him in Turkey, she “will not turn back” and he can move to wherever he wants to go in Turkey without her (or the children).[5] The father denies ever receiving or sending the messages which the mother deposes were exchanged between the parties. Later in these reasons I explain why I accept the mother’s evidence that the text messages were sent and I reject the father’s evidence to the contrary.
[4] Affidavit of the mother sworn 4 May 2020.
[5] Affidavit of the mother sworn 4 May 2020 Annexure A, 5.
The father deposes that: [6]
[After] some time, my wife told me that she wanted to stay with her family for a little longer and I understood her. After they arrived in the Commonwealth of Australia, we talked on WhatsApp 2-3 times a week. On Sundays, we had regular conversations around 10 o’clock in Turkish time. Other contacts were completely based on the will of [the mother] and her family. These contacts were established on [the wife’s] father Mr G Metin’s phone numbered (+ 61…) and [the wife’s] phone numbered (+ 61…). Since we carried out the communications on the phone and on video, we did not have any text messages.
[6] Affidavit of the father sworn 10 December 2019 which is annexed to the Form 2 filed 16 April 2020, 23-24.
The mother also deposes:
39. During 2018, I frequently told the father by WhatsApp phone and text message that I did not want to speak to him or have anything to do with him. I told him many times that I would not return to Turkey. However, there were occasions in 2018 (listed below) when I was exhausted by the constant WhatsApp text messages from the father, and I did not firmly reject the possibility of returning to Turkey.
40. All my text message exchanges with the father are in Turkish. I have sought the official translation of the following text messages to produce to this Honourable Court, however at the date of swearing my Affidavit they are not yet prepared. I provide the following as my understanding of the English translation of the text messages that I received from the father and that I sent to the father on the relevant dates. For example, on 2 July 2018:
(a) at 7:37:08 pm I texted to the father: “Another thing I am not returning straight away I have cycsts in my ovaries I need to have an operation”.
(b) at 7:37pm the father texted me: “who said this”.
(c) at 7:37pm I texted the father: “the doctors did”.
(d) at 7:37pm the father texted me: “We can go to City J”.
(e) at 7:42pm I texted the father: “No I want to be treated here”.
The mother’s evidence is that, on 3 March 2018, she communicated her intention not to return more strongly:[7]
Father: I don’t care about anybody, and you shouldn’t care about anybody.
Father: No matter
Father: What they say
Mother: Put us among those people because we are not returning anymore, we are good here without you
Father: Don’t give sudden decision with anger
Father: Children can’t grow up without a father by your decision
Father: No one has the right to raise them without parents
[7] Mother’s affidavit 10 June 2020, Annexure A, 5.
I will deal with more of the text messages later in these reasons. The mother also contacted the Attorney-General’s Department in Australia and learned about the 1980 Convention. She understood, erroneously, that if she managed to keep the children in Australia for 12 months, they would not be summarily returned to Turkey.
The case of the SCA is that the mother did not refuse to return the children in late February or March 2018, as alleged by her. Rather, that the mother asked the father to extend the children’s stay in Melbourne for various reasons, such as medical treatment, and he consented to the extensions apparently without any specific return dates or travel arrangements being discussed.
The father’s evidence is that he did not understand that the mother was refusing to return the children to Turkey until 6 May 2019 when the mother advised him by telephone that she would not return. The father deposed that: [8]
When my wife and children did not return after three months, I told [the mother] that it was time for their return. But [the mother] started offering excuses like “my family will be to stay a little longer”, “I want to get away from everything for longer”, “I am going to the doctor here”, “I am of treatment”, “we will return in the end, let us stay some more”.
[8] Affidavit of the father sworn 10 December 2019 which is annexed to the Form 2 filed 16 April 2020, 24.
The father was unable to leave Turkey at the time the mother and children flew out to Australia because he was subject to an official investigation. The father’s evidence is that, it was agreed between the parents that, once the travel ban affecting him had been lifted, he would apply for a tourist visa to travel to Australia and that the parents and children would travel back to Turkey together. The father states: [9]
All this time, I was not able to leave the country due to the investigation I went under. [...] I was stalled off by my wife with the promises that they would return soon. When, afterwards, I started to insist on their return, [the mother] offered me to come to Australia and return with them.
The mother denies any offer or invitation for the father to travel to Australia. The mother deposes that, in November 2018, she received a text message from the father asking if she would collect him from the airport. She was reportedly fearful that he would try to take the children from school and child care. After collecting the children from school and kindergarten, the mother attended the Suburb H Police Station where she was reportedly advised that the father’s visa application had been rejected and that he had not entered Australia. The mother obtained an intervention order preventing the father from approaching her or the children.
[9] Affidavit of the father sworn 10 December 2019 which is annexed to the Form 2 filed 16 April 2020, 24.
On 20 December 2018 the mother wrote to the Australian consular offices in Turkey, which omitting formal and irrelevant parts reads: [10]
I am writing this letter to inform you that [the father] the person that I married in Turkey has sent the messages and images that he has applied to come to Australia. I am currently in Australia since 20th February 2018. During the time I was married to [the father] in Turkey he has been physically and mentally abusing to my children and myself. He has isolated us at home. I am very fearful that if he is given that these are to come to Australia he is going to torment me and my family. He has previously made threats that he is going to attack my family if he was to see my parents. I do not want to see him or begin to get close to my family. He is very dangerous and abusive. I am already stressed over the secret life and myself especially children stop I have already submitted a letter to the Consulate in Turkey regarding him in last year 2017. Please consider my letter of very scared. Please contact me urgently very confused what to do.
The mother relies on her letter to the Consulate to prove that she was not encouraging the father to travel.
[10] Exhibit “M1”.
The father deposes that he enlisted friends and family to speak to the mother about coming home. He deposed: [11]
When my Visa application was rejected by the Commonwealth of Australia, I asked the help of my common family friends because of the delay my wife and children term. Our family friends have conversations with [the mother] and her parent. In those phone conversations , [the mother] and her family explained that they wanted [the mother] and the children to stay with the little longer and guarantee their return to Turkey in a short time.
Some of the father’s friends made affidavits about having contacted the mother in relation to the return of the children.
[11] Affidavit of the father sworn 10 December 2019 which is annexed to the Form 2 filed 16 April 2020, 25.
It was the father’s evidence that he continued having telephone conversations with the mother and the children (although the wife denies this and says that the communications were largely by WhatsApp). The father deposes: [12]
In one of those conversations, [the mother] said that she and her family had made a decision that she did want to return to Turkey anymore. The phone conversation I had with [the mother] was a total disaster for me. Right after that date I started looking for legal ways to keep my contact with the children have the return. [The mother] informed of her decision that she didn’t want to return during the phone conversation we had on 06/05/2019. Until that date, I desperately waited for the return of my children wife and I did not resort to legal means due to [the mother’s] acts of stalling off and crippling my will. I first brought an action before the Family Court of B Town for the restoration of custody on 24/05/2019.
[12] Affidavit of the father sworn 10 December 2019 which is annexed to the Form 2 filed 16 April 2020, 23.
The father says he did not know that the mother had terminated the enrolment of X in school in Turkey and that she was attending E Primary School, in Melbourne, until he was preparing documents for the Hague request and he was shown a document to that effect dated 22 October 2019. The mother contests this and says that the father knew full well when the children started school and day care in 2018 because she and the children told him. The father’s response is that he thought that the children were at day care not school.
On 10 December 2019, the father completed documents for his request to the central authority in Turkey for a return application to be made for the children pursuant to the 1980 Convention. I discuss this evidence later in these reasons.
The father’s parenting proceedings in Turkey are still pending.
Direct Judicial Communication
The parties consented to direct judicial communication about when the respondent mother could expect any parenting matter to be dealt with by the courts in Turkey. In essence, the response was that pursuant to Law No. 7726 the majority of legal periods have stopped running in Turkey and that all but urgent matters have been postponed until after 15 June 2020. The responses from Turkey were timely and helpful but not relevant for the matters to be determined at this hearing.
An overview of the law
Retentions and removals under the 1980 Convention are mutually exclusive concepts. On anyone’s view, this is a retention case and a blatant one at that.
The retention of a child occurs when the child is rightfully taken out of one contracting state and into another contracting state and not returned as and when agreed.
Not every retention of a child across international borders qualifies for a return of the child under the Regulations. The Regulations apply only to a retention that is wrongful within the meaning of reg 16(1A). The pre-requisites to a finding that the retention was wrongful, and this Court having jurisdiction to order that a child be returned to another contracting state in respect of which the 1980 Convention has entered into force, [13] are that:
a)the child is under 16 years (regulation 16(1A)(a); Article 4);
b)the child was habitually resident in the country they were removed from immediately prior to their removal (regulation 16(1A)(b); Article 4);
c)immediately prior to the retention, the left-behind parent had rights of custody in relation to the child under the law of the country of habitual residence (reg.16(1A)(c); Article 3). Rights of custody is defined by reg. 4 and includes rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child;
d)the retention of the child was in breach of the left-behind parent’s rights of custody (regulation 16(1A)(d); Article 3(a)); and
e)at the time of the retention the left-behind parent was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been retained (regulation 16(1A)(e); Article 3(b)).
The above pre-requisites to a return order are also referred to as jurisdictional facts.
[13]Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Art 35.
The retention of a child is not a continuing state of affairs. For the purpose of our Regulations, it occurs on a specific occasion and that occasion must be identified.
If all the jurisdictional facts are met, the application is identifiable as either:
·An application which is brought within 12 months of the date of wrongful retention; or
·An application which is brought more than 12 months after the date of wrongful retention.
Regulation 16(2) applies to applications initiated more than a year after the retention. [14] It provides that, if the application is brought more than one year after the retention, there is an opportunity for the respondent to “establish that the child has settled in his or her new environment”. If the child has so settled, our jurisprudence holds that the Regulations do not apply and the summary return mechanism is not available.[15]
[14] Implementing Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Art 12.
[15]Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165, 16.
If the application is brought within one year after the wrongful retention (or the respondent has failed to satisfy the court that the children are settled as provided in reg 16(2)), reg 16(1) provides that return is mandatory unless one of the five exceptions to return under reg 16(3) is made out and the court exercises its discretion to refuse return.
The exceptions to return can be briefly described as:
a)The left-behind parent was not actually exercising rights of custody when the child was removed/retained and that those rights would not have been exercised if the child had not been so removed. (Regulation 16(3)(a)(i) implementing Article 13(a));
b)The left-behind parent consented to or subsequently acquiesced in the removal or retention. (Regulation 16(3)(a)(ii) implementing Article 13(a))
c)There is a grave risk that if returned the child would be exposed to physical or physiological harm or otherwise place the child in an intolerable situation. (Regulation 16(3)(b) implementing Article 13(b));
d)The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views. (Regulation 16(3)(c) implementing Article 13); and
e)A return would be contrary to fundamental principles of freedom. (Regulation 16(3)(d) implementing Article 20).
Exceptions apply to children individually, not as a group.
If the retention is wrongful and none of the exceptions to return apply, a return is mandatory. In Hague return applications, the return of the child is not pre-conditioned on the best interests or welfare of the particular child.
If one or more of the exceptions to return are made out, the court has a discretion to refuse to return the child. Amongst other things, the best interests of the individual child will inform the exercise of the court’s discretion to refuse return.[16]
[16]HZ v SCA (2006) 35 Fam LR 489.
Bifurcated hearing (COVID-19 considerations)
From its inception, the 1980 Convention has been predicated on freedom of international travel. International travel for Australia is currently impeded by a number of practical considerations to do with the global COVID-19 pandemic. Amongst other things, there are restrictions on travel in and out of Australia. We are in a period of uncertainty and disruption and not only in terms of risks to health and access to justice in states to which a child is sought to be returned. There is also uncertainty about how the 1980 Convention can operate. For instance, the 1980 Convention refers to returns being “prompt”. [17] In cases where the application for return is brought within one year of the retention (or removal), Article 12 provides that the return must be “forthwith”. The potential that a return may not be able to be implemented forthwith, promptly or at all, may require the court seized of the return application to consider at an early stage various options including, but not limited to, delaying the hearing, determining the matter but delaying the return, or deciding the matter in sequential steps. In any given case, one option may favour the applicant over the respondent or vice versa. It is to be remembered, of course, that the 1980 Convention is a forum selection treaty. It is a means to an end and not intended or structured to be an end in itself.
[17]Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Arts 1 & 7.
This matter was listed for mention before me on 26 May 2020 to allow all parties, including the ICL, an opportunity to be heard on how the hearing should be conducted. It was agreed that I would determine the controversial issues around jurisdictional facts, that is, whether the retention is “wrongful” within the meaning of reg 16(1A) or whether the Regulations no longer applied because of reg 16(2). Any consideration of the mother’s case for exceptions to return, the exercise of the discretion to refuse return and COVID-19 considerations were specifically excluded from this hearing.
Issues
I have regard to the outline of case filed by the applicant SCA on 5 June 2020 and to the outline of case filed by the respondent mother 11 June 2020. Even deciding half this case involves numerous issues. All of the issues are issues of fact which go to jurisdiction or to power. None of these issues are discretionary findings.
Issues arising from the primary position of the applicant SCA
It is the SCA’s primary position that the children were wrongfully retained by the mother on 6 May 2019. The mother concedes retaining the children without the father’s consent but alleges that she did so much earlier than 6 May 2019. If, contrary to the mother’s position, I am satisfied that her retention dates from 6 May 2019, the mother asserts that the retention was not wrongful because, by 6 May 2019, the children had been living in Australia for fourteen months and had become habitually resident in Australia. If the mother is correct about habitual residence, the SCA’s application would have to be dismissed because the children were not habitually resident in Turkey immediately before the retention. If the mother fails on her habitual residence point, the retention will be wrongful and the mother could argue exceptions to return at a subsequent hearing.
Issues arising from the primary position of the respondent mother
The mother’s primary position is that she informed the father by telephone in late February that she was going to keep the children in Australia and that the wrongful retention must run from then. That was within two weeks after the children had arrived in Australia and prior to the date on which the mother had agreed the children would return to Turkey (10 March 2018).
If the mother succeeds in establishing that her retention dated from 28 February or, indeed, any date prior to 16 April 2019, reg 16(2) applies given that the return application was not filed by the SCA until 16 April 2020. Regulation 16(2) provides that, if an application for a return order is filed more than one year after the day on which the child was first retained in Australia and the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment, the court must, subject to the exceptions provided for in reg 16(3), make the return order.
The mother contends that the children are settled in Australia whereas the SCA contends that they are not settled in Australia.
If I am satisfied that the children are settled, the application of the SCA must fail and be dismissed. [18] If I was not satisfied that the children are settled, in spite of having been in Australia for more than two years, the respondent mother would have an opportunity to raise exceptions to return at a subsequent hearing.
[18]Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165.
Issues to be determined
The following issues require determination at this hearing:
a)When were the children first retained in Australia by the mother?
b)Were the children habitually resident in Turkey immediately prior to the mother first retaining them in Australia?
c)If the application filed 16 April 2020 was filed more than one year after the mother first retained the children, are the children now settled in Australia?
The Evidence
Onus of proof
The applicant SCA bears the onus of proving the jurisdictional facts which characterise a retention as “wrongful”. They are the date of retention and habitual residence
The respondent mother bears the onus of proving that X and Y are “settled”.
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.
Documents relied upon
The SCA has filed the following material:
a)Affidavit of the father sworn 10 December 2019 which is annexed to the Form 2 filed 16 April 2020 at page 23;
b)Affidavit of the father sworn 14 February 2020 annexed to the further affidavit of Mr K sworn 15 April 2020 which is annexed to the Form 2 filed 16 April 2020 at page 7;
c)Affidavit of the father sworn 1 June 2020 annexed to the affidavit of Mr L sworn 2 June 2020 at pages 7 to 122;
d)Affidavit of Mr M sworn 31 May 2020 (the father’s cousin) annexed to the affidavit of Mr L sworn 2 June 2020 at page 153;
e)Affidavit of Mr N sworn 1 June 2020 (neighbour and friend) annexed to the affidavit of Mr L sworn 2 June 2020 at page 139;
f)Affidavit of Mr O sworn 31 May 2020 (distant relative of both parents) annexed to the affidavit of Mr L sworn 2 June 2020 at page 130;
g)Affidavit of Mr P sworn 1 June 2020 (father’s brother in law) annexed to the affidavit of Mr L sworn 2 June 2020 at page 123;
h)Affidavit of Mr Q sworn 31 May 2020 (neighbour) annexed to the affidavit of Mr L sworn 2 June 2020 at page 146;
i)Affidavit of Mr R sworn 1 June 2020 (father’s solicitor in Turkey) annexed to the affidavit of Mr L sworn 2 June 2020 at page 162.
The Mother relied on the following material:
a)Answer and Cross Application filed 5 May 2020.
b)Affidavit of the mother sworn 4 May 2020;
c)Affidavit of Ms S Metin sworn 7 May 2020 (mother’s sister);
d)Affidavit of Ms T Metin sworn 7 May 2020 (mother’s mother).
e)Affidavit of the mother sworn 10 June 2020.
The applicant SCA objected to reliance by the mother on her affidavit sworn 10 June 2020. That affidavit is 222 pages long inclusive 210 pages of text messages which the mother alleges are an accurate and complete record of WhatsApp messages passing between her and the father from 28 February 2018 to 20 March 2019 translated from Turkish into English.
The bases of the applicant’s objection was that the affidavit was filed out of time and that instructions could not be obtained on its contents. That affidavit and the messages in Turkish were served on the applicant SCA on 11 June 2020, transmitted through the Australian Central Authority to the Turkish Central Authority and then to the father’s practitioners in Turkey. When the case commenced, counsel for the SCA had not spoken to the father nor obtained instructions about the text messages. I indicated that I would be more amenable to adjourning the commencement of the hearing for 24 hours, to enable the father further time in which to read the messages, than I would be to excluding evidence which appeared to be relevant. As it happened, after speaking with the father, counsel for the applicant SCA learned that father had been provided with the Turkish version of the text messages on the previous Thursday. [19] The SCA did not press the objection nor wish to avail herself of a delayed start to the case. I permitted the mother to rely on her affidavit sworn 10 June 2020.
[19] Exhibit “M2”.
Regulation 26 report
On 16 April 2020 I ordered a reg 26 report to be prepared. Regulation 26 provides that the Court may direct a Family Consultant to undertake an assessment and to report to the Court on such matters as the court considers to be appropriate and for the court to receive the report into evidence. A Family Consultant is an expert psychologist or social worker with a high level of training and experience in child development and parenting after separation and divorce. Family Consultants are employed directly and exclusively by the family courts in a section of the courts called Child Dispute Services, which is located within the Registry. Some Family Consultants, such as in this case, have extensive experience in Hague return cases. I directed the Family Consultant to attend to a long list of specific tasks and enquiries. [20]
[20]Paragraph [13] of the Order made 16 April 2020.
The Family Consultant saw the children on 5 May 2020. She met the mother when the mother and maternal grandmother delivered the children to Child Dispute Services. The Family Consultant did not meet the father. The parents were not assessed. The reg 26 report is dated 18 May 2020 and is received into evidence.
The children were interviewed separately. Both children appeared quite comfortable and relaxed, engaging easily with the Family Consultant, and played a range of games whilst being interviewed. Neither of the children appeared to be guarded in their communication, they spoke spontaneously, and responded to direct questions. Whilst there was nothing about the children’s narratives that would suggest they have been actively coached, the Family Consultant recognised that both X and Y have been exposed to adult conversations and attitudes within the environment of the mother’s family regarding the nature of these proceedings, the father and the family’s life in Turkey.
The Family Consultant recorded that the children described a warm and functional family environment in Australia with all the adults contributing to the smooth running of the household. The maternal grandparents assist the mother, for example, by collecting the children from school, and it appeared to the Family Consultant that the mother’s role as the children’s parent is respected and maintained. The children described a routine at home that is consistent and child focussed.
In summary, the Family Consultant observed in her report that X and Y are happy and content to be living within a loving and supportive extended family. They have adapted easily to attending school in Australia and both the children have made excellent progress with learning English and are performing well within the academic standards expected. They have made friends at school. They can be described as having assimilated seamlessly into life in Australia, both within their extended family and also within their school community.
The Family Consultant explained to the children in words likely to be understood by them the nature of the Hague proceedings and, in particular, that it is not a final decision about with whom they will live. The children responded that they were aware that their father “is trying to get us back to Turkey” and they were at court to discuss with the Family Consultant their views and feelings about this. Y said: “we are here today to do questions […] about what we do in Turkey and what we do here (in Australia)”.
As to the apparent emotional functioning of each child and whether there was any acute distress or indicators that one or other required immediate expert assessment or mental health treatment, the Family Consultant recorded that both children presented as bright, engaging, and articulate, and without any indication of compromised emotional health or functioning, that would require immediate expert assessment or mental health treatment. The children’s school reports from E Primary School, for Semester Two of 2019 were sighted. Both children had been assessed as achieving well within the academic standards expected at their specific level and their behaviour and effort in class are rated as ‘Very Good’ or ‘Excellent’. There were no reported concerns regarding their presentation, behaviour or functioning were noted in their school reports.
I directed that the Family Consultant comment on communication the children are having with the father and whether the children (or either of them) would benefit from further or better communication with the father. The Family Consultant recorded that, up until approximately November 2019, the children were having regular communication with their father via telephone/WhatsApp /FaceTime. In response to direct questions, X stated [30]:
We used to talk to him a lot. We used to call him or he would call us. But then I didn’t want to talk to him anymore…It became too annoying…he just kept on asking me; when are you coming back to Turkey? Go ask your mother. …even though I kept telling him I don’t know, he kept on asking me…I didn’t like this.
When asked about what else she spoke about with her father, X indicated that the father wanted to know what they were doing, where they were going and who was visiting them. X acknowledged her father asked her about school also. She spontaneously said: “One time I told him I had my hair cut and I lost a tooth and he said: ‘wow that’s amazing’.” When asked if she misses speaking to her father, X shook her head, indicating ‘no’ and said: “I don’t want to.”
Y confirmed that he has not spoken to his father “for lots of time,” suggesting that this is because “he doesn’t phone us anymore. I don’t know why.” When asked whether he misses speaking to his father, Y nodded his head, indicating ‘yes.’ Y reminisced: “we used to talk to him on Sundays. It was at the night, and when we finished talking to him we went to sleep because it was late.”
The Family Consultant’s view was that, other than the father reportedly questioning X about when they would return to Turkey and this causing her distress and discomfort, there appears to be no substantive reason for the children not to resume regular communication with their father. The Family Consultant recommended that consideration be given to telephone/Skype contact between the children and the father commencing twice a week for up to thirty minutes on each occasion. The reg 26 report was published prior to the Hague mediation at which interim communication between the father and the children could be discussed. To date, I have not been requested to make any orders.
I will discuss other aspects of the Family Consultant’s evidence later in these reasons where that evidence is relevant to the issues to be determined.
The Family Consultant was cross examined by all parties, electronically, from her office on another floor of the court building. The Family Consultant was an impressive witness. She was not defensive. She was knowledgeable and gave her evidence in a considered way. She well understood the difference between a report for a Hague return proceeding, such as this, and the usual best interest reports undertaken for parenting proceedings. Under direct questioning, the Family Consultant gave thoughtful answers. The Family Consultant acknowledged that she does not “know” the children well and was careful to confine her comments to matters about which she felt she has enough information to assist the court. Her observations and conclusions were not successfully challenged. Indeed, cross examination strengthened her evidence.
I accept the Family Consultant’s evidence, much of which appears below under issues to be decided.
The witnesses of the parties
In family law matters which are conducted across international borders, some cognizance must be taken of the system of law of the other contracting state. Turkey is a civil law country whereas we are a common law jurisdiction. It is not customary in civil law countries for matters to proceed on an adversarial basis under comprehensive obligations of disclosure. Counsel for the SCA confirmed that Turkey is an inquisitorial system. We frequently encounter affidavits emanating from civil law jurisdictions which contain argument, submissions, not much direct evidence and frequently no specific reply or rejoinder. Sensible allowances must then be made in the construction of that evidence. However, in this case, the father’s affidavits were drawn by a solicitor who practices in Melbourne, as a family law solicitor, who happens to be in Turkey at this time. The father’s affidavits and those of the SCA’s other witnesses are endorsed as having been prepared by the solicitor from our jurisdiction. [21] Accordingly, I do not consider it necessary for me to make particular allowance for the form or expression of the evidence relied upon by the SCA prepared by the father’s Melbourne based lawyer.
[21] The endorsement accords with r 15.08(d) of the Family Law Rules 2004 which provides that an affidavit must bear the name of the person who prepared the affidavit.
Impression of witnesses who were cross examined
All witnesses were cross examined electronically on the Microsoft Teams platform, where necessary, with the assistance of an interpreter provided by the Court. There was no restriction on cross examination of witnesses. The respondent mother and the maternal grandmother are in Australia, all other witnesses of the parties are in Turkey. None of the witnesses in Turkey were required to give evidence any earlier than 7:00 a.m. (Turkish time) although one, Mr P, requested that his evidence commence at 6:00 a.m. (Turkish time) so that he could be sure to get to work.
The father (SCA witness)
I will not deal with the father’s evidence exhaustively as it was extensive being given for eight hours over two days. In summary, I find that the father was an unreliable witness whose evidence as to important issues was contradictory and untruthful.
In the course of giving evidence, the father was repeatedly warned not to discuss his evidence or what transpired in court with others. After each break he was cautioned that he was still bound by his affirmation to tell the “whole truth”. After the lunch adjournment on the second day of the trial, there was the following interchange: [22]
[22] Transcript in Confidence, 16 June 2020, p. 28-30.
MS HARRIS: Do you have a mobile phone with you today?
THE INTERPRETER: Yes, I do have phone with me.
MS HARRIS: Can I – can you show the court your phone please? Did you use that telephone during the adjournment?
THE INTERPRETER: No, I didn’t.
MS HARRIS: If you were observed using – with the telephone near your ear, what do you say?
THE INTERPRETER: How what I say?
MS HARRIS: If you – if someone says they saw you using the telephone during the adjournment, what do you say about that?
THE INTERPRETER: No, I didn’t use it.
MS HARRIS: And that’s your honest truth?
HER HONOUR: Mr [Interpreter], my court officer says he saw you use it.
THE INTERPRETER: Only I had a look. I didn’t call anyone.
HER HONOUR: How do you look at a phone? Do you turn it on?
THE INTERPRETER: I look at it like this and anyone called me, anyone send anything to me.
HER HONOUR: Well, then, Mr [Interpreter], you are using it to check on who has called you.
THE INTERPRETER: Yes, I did, but nobody called me. This is the business phone.
HER HONOUR: [Court Officer], was he observed talking into the phone?
COURT OFFICER: I definitely saw it up to his ear. I’m unsure whether he was speaking to anybody or not, but definitely as if he was.
HER HONOUR: How did you hold the phone when you were using it?
THE INTERPRETER: Like this.
HER HONOUR: Well, I am advised that you were holding it up to your ear as if you would be talking into it.
THE INTERPRETER: Yes. Yes. Yes. Mr P [the father’s witness] try to get into the communication, I ring him to say don’t come into conversation until you have been asked.
HER HONOUR: You called him? You called?
THE INTERPRETER: Yes, I told him don’t come in, they will call you.
HER HONOUR: Do you remember five minutes ago saying that you did not use your phone?
THE INTERPRETER: Only for this issue and I – I say to him don’t come in, they will call you and I forget to tell you.
HER HONOUR: Thank you, Ms Harris.
MS HARRIS: Sir, do you have a problem with your memory?
THE INTERPRETER: Yes, I’m forgetting the things.
MS HARRIS: Sir, I want to suggest to you, you were happy to tell her Honour that you weren’t using the phone until you knew that people had seen you on camera. That’s right, isn’t it?
THE INTERPRETER: Yes, that’s why I forget the things until you remind me and then after that I told you.
MS HARRIS: Sir, her Honour might form the view that you either have a shocking memory or that you lied. They’re the only two options that are open to her. That’s right, isn’t it?
THE INTERPRETER: And definitely I didn’t lie because of the – away from the children, that’s upsetting me a lot and I’m forgetting the things.
MS HARRIS: You forget something that you did less than 10 minutes ago, sir. Is that what your evidence is to the court?
THE INTERPRETER: Yes, sometimes I’m forgetting the things like this.
MS HARRIS: So how can we believe any of your evidence is your memory is that bad?
THE INTERPRETER: And I’m adapt really well into the court right now. I can easily forget the other things.
MS HARRIS: Sir, that makes absolutely no sense at all.
THE INTERPRETER: I apologise.
MS HARRIS: Apologies are no good and won’t help you. You need to tell the truth.
THE INTERPRETER: I didn’t attempt to lie totally, I forget it.
MS HARRIS: No, sir. You told us first of all you didn’t use your phone at all, and you did, didn’t you?
THE INTERPRETER: Yes, when you said that and I remember I used my phone.
MS HARRIS: Sir, you did not remember until her Honour said you had been seen on the video screen. That’s when you remembered.
THE INTERPRETER: Yes, that’s correct.
MS HARRIS: So you were caught out.
THE INTERPRETER: I didn’t do on purpose.
I am not satisfied that the father discussed his evidence with Mr P. However, I am satisfied that the father was not constrained by the truth or the formal nature of the proceedings including my admonition not to speak to witnesses. At the very least, the father said what he thought he could get away with saying. He showed neither remorse nor embarrassment at being found out.
The father’s evidence was that there were no WhatsApp messages between himself and the mother after the mother and children arrived in Australia in February 2018.[23] In cross examination, the father stated that the mother had “made up” the approximately 10,500 text messages annexed to her affidavit sworn on 10 June 2019 and was “lying” when she deposed that they were accurate communications between them. That evidence does not sit well with the affidavit evidence sworn by the father.
[23] Affidavit of the father sworn 10 December 2019 which is annexed to the Form 2 filed 16 April 2020, 24.
The father initially deposed that “we did not have any text messages” (see [19] above) which I find to be a curious statement for him to make even before the mother had raised the extensive record of text messages on which she would rely. My impression is that the father’s denial of text messages in his first affidavit was a pre-emptive strike which betrayed his knowledge that the mother had an extensive collection of text messages which would readily corroborate her allegation that she informed the father that the children would not be returned to Turkey within the first few weeks of her arrival in Australia.
I reject the father’s allegation that the mother constructed the voluminous text messages. I would expect a constructed version of texts to be less discursive, more focussed on what the mother was seeking to prove and obviously much shorter. It is difficult to conceive of how the mother could have fabricated the 10,500 WhatsApp text messages with such ringing tones of authenticity. If she did, she accomplished a feat beyond the skill of most. The father’s version of events (which I do not accept) has the mother scattering some relevant and helpful messages on an ocean of banal discourse, requiring expenditure of a lot of time and the application of uncommon skill and precise judgement.
The father’s own evidence corroborates the fact that text messages were sent between the father and the mother.
The mother refers to WhatsApp text messages which the father sent to her in January 2019 in which he insisted the mother speak with “Public Prosecutor [CC]” about X’s unauthorised absence from school in Turkey. [24] Because the wife recognised that the prosecutor was a friend of the father, she interpreted the father’s insistence that she speak to the prosecutor as the father attempting to intimidate her. In response, the father deposed that he was referring to his friend by his official title “out of respect” and not to signal to the mother that he could arrange to have her prosecuted. [25] He also deposed, “I accept that my messages may have been overwhelming for the Mother. I do not recall the extent of the messages as I no longer am in possession of that particular phone.” I find that the father’s reference to messages sent by him to the mother is an acknowledgement by him that he and the mother used WhatsApp texting, which contradicts his first evidence that “we did not have any text messages”.
[24] Affidavit of the mother sworn 4 May 2020 [42] to [45]
[25] Affidavit of the father sworn 1 June 2020 as attached to the SCA’s Affidavit filed 2 June 2020, [98-99].
The father pointed to the format of the annexure as support for his allegation that the mother had written the text messages herself, observing that the annexure is in the form of a “notes” file rather than screenshots of the messages themselves. Counsel for the mother, Ms Renwick, put to the father the screenshots of WhatsApp messages included by the father in his affidavit sworn 1 June 2020 at annexure “[Mr D]-17”. Counsel referred the father to the page in the mother’s annexure where those messages are reflected, noting that some messages between messages in that conversation were not included in the father’s annexure. The father conceded that the mother’s annexure recorded his screenshotted messages accurately, but failed to answer or recognise that he had left messages out of his annexure and that his annexure again corroborates what the mother says about the use of WhatsApp to text between the two of them.
Ms Renwick put multiple pages of the mother’s annexure to the father as messages between the parents in which the mother says that the relationship is over, the father begging for forgiveness and the mother saying she would not return. One example was on pages 41-42 of the bundle of messages annexed to the mother’s affidavit. These texts are from 12 March 2018 to the father and the following transaction taking place:
Father: Do not do this think the children
Father: Come home
Mother: No
Father: Rest your head
Father: Then turn back
Father: Whenever you want
Father: Go and turn back
Mother: I am not going to turn back don’t say so again
Father: Spend the summer there
Father: If you want
Mother: No I’m not coming
It is noted that the interpreter for the hearing interpreted these messages live for the Court and gave the following interpretation of the above messages in italics:[26]
Father: Come and go.
Mother: I’m not coming back. I’m not coming. Don’t ask me.
Father: Summer time, go there if you like.
Mother: No. I’m not coming.
[26] Transcript in Confidence, 15 June 2020, p. 69, 17-30.
Finally, on the issue of the authenticity of the text messages, the matter was stood down and the father was invited to enter a code into his new phone which would allow him to access any bank of texts from his old phone (which he no longer has). I was informed by counsel for the SCA that the father refused to enter the code into his new phone on the stated basis that he knew he would be unsuccessful in accessing any data. The father’s refusal to even attempt to retrieve messages, leads me to conclude that the father knew that the result of any such attempt would not assist the case of the SCA.
I do not accept the father’s evidence that he and the mother did not correspond by WhatsApp. I accept the mother’s evidence on this point in its entirety and, conversely, I make a negative finding as to the father’s credibility and honesty. I also make the observation that the father was able to lie effortlessly.
The father says he did not know that the mother had terminated the enrolment of X in school in Turkey and that she was attending E Primary School, in Melbourne. In his first affidavit he deposes that he learnt about the application by the mother to terminate X’s enrolment in school in Turkey on 22 October 2019 when he applied to the Turkish school to prepare document for his Hague Application. In his second affidavit, he deposes that he found out about X attending school in Melbourne a few months after 6 May 2019 when he says the mother told him she was not returning. He deposes that [23] a few months later he found out from the mother’s step-grandmother who lives in B Town that X was attending school in Australia. He deposes [22] that she did not obtain his consent to change the school enrolment of X and that “the impression I had from talking to X was that she was going to some kind of day care or play group.” He then deposes that [23]:
Given our subsequent agreement for the mother to extend her holiday in Australia, I had no choice but to agree to Children attending school in Australia and I also believed that it would be in the best interest of the Children to continue their learning and to have a school routine, until they returned to Turkey. the mother and I also believed that learning English would benefit the education of the Children in Turkey.
The mother contests this and says that the father knew that the children had been enrolled in school two weeks after arriving in Australia and that the children and she had told him. Whilst the father denies all of the WhatsApp messages, at page 5 of Annexure A of the mother’s affidavit of 10 June 2020 on 1 March 2018 at 3.59pm the mother sent the father the following WhatsApp message in response to the father asking to call the mother on the phone: “No I picked up X from school I’m driving”. At 6.25pm after further attempts by the father to call the mother, the father writes: “How is” “X at” “school” “X” “Do the” “Teachers” “speak Turkish” and the mother responds “She loved it well her new school had big school grounds and parks”. The father again asks about the teachers speaking Turkish and the mother writes in relation to Y “I will enrol him to school tomorrow” and the father responds: “Don’t enrol him to school” “He is so small”. The mother responds that Y will learn English like X has and that X is happy at school and has made friends. The mother then says that it would be good if the father could contribute to the school fees, the father responds that money is not a problem and the mother responds that she will inform him about the fees tomorrow. Having accepted that the texts were exchanged as the mother deposes, I reject the father’s evidence about when he first learned of X going to school. Furthermore, I find that the father’s case that he allowed the children to remain in Australia until they were attending school to be implausible, particularly after he specifically concedes to having involved the assistance of Public Prosecutor CC as discussed above.
In the father’s affidavit evidence, [27] he states that he did not find out about his rights under the 1980 Convention until after May 2019 when he instituted parenting proceedings in Turkey. In particular:
34. Later in May 2019, my solicitors to father proceedings in Family Court of [B Town] for parenting orders seeking return of the Children and obtained a watch list order in the event they came to Turkey so that we could have a chance to properly trial of the matter in the Family Court in Turkey.
35. I became aware of the Application under the Hague Convention much later filed an application as soon as possible thereafter on 10 December 2020 through the Turkish Central Authority.
[27] Affidavit of the father sworn 10 December 2019 which is annexed to the Form 2 filed 16 April 2020.
However, in his oral evidence the father consistently referred to knowing about the 1980 Convention even before the mother and children departed Turkey including the summary nature of the hearing (which he referred to as “no hearing”) and the prompt return which he seemed to believe would be automatic. He referenced his early knowledge of the prompt return remedy in the context of refuting the authenticity of the mother’s collection of WhatsApp text messages. He said that, had the mother messaged him as alleged, he would have immediately made application to invoke the return remedy under the 1980 Convention. When the inconsistency between his affidavit and oral evidence was pointed out to the father, his response was that the affidavit was a “mistake I missed” or words to that effect. I doubt that is the case. My impression is that this is another example of the father not being at all constrained by the truth and being prepared to tailor his evidence to the convenience of the moment.
Mr Q (SCA witness)
Mr Q is employed as a driver. He provided evidence that he and the requesting father have been close friends since they were teenagers but due to work commitments they do not often see each other and speak around once a month. Mr Q is also a witness for the father in the parenting proceedings in Turkey. Mr Q’s affidavit evidence was that he spoke to the mother on the phone 2-3 months after she arrived in Australia and that she told him that she was staying longer and that the father knew this and understood that she was staying longer. He then says in January 2019 that he had another conversation with the mother where she said she had "women's health issues" so was staying in Australia longer again. He says he confirmed this with the father. He says he had no idea that the mother was not returning when he spoke to her throughout 2018 and that it was not until May or June 2019 he learnt from the father that the children were not returning. He says he and his wife contacted the mother in Australia. The mother denies all of the conversations described by Mr Q.
In his oral evidence, Mr Q impressed me as working from a script. For instance, in response to Ms Renwick’s question about when he became aware of the Turkish parenting proceedings filed by the father, Mr Q responded: “May 2019 or June 2019 we learn she is not coming back.” He delivered a rehearsed line that was not responsive to the question asked and offered it forcefully and without context.
Ms Renwick asked about Mr Q’s conversations with the mother whilst she has been in Australia and Mr Q responded that he, his wife and children used WhatsApp to video and audio call the mother in Australia. The mother denies that she spoke to Mr Q or his family members by telephone. Ms Q did not give evidence. Mr Q demonstrated how the mother’s telephone number is on his telephone which is linked to his WhatsApp account. When asked if he could provide a record from WhatsApp of the telephone conversations with the mother, he first responded that because he was calling from Turkey to Australia using the internet that a record was not kept, then he stated that he did not have a record because the records only remain on the phone for two or three months and then when further prompted, he said that he had changed his phone. His evidence was then that he spoke to the mother by audio call until May or June 2019 and, after that, only by social media. It was put to him that he had not deposed to telephone conversations in his affidavit and that the mother denies speaking by telephone with him. Mr Q stated that he, his wife and children had called the mother and children via WhatsApp from his home at night time in Turkey. He could not remember the time difference. It was agreed between counsel, as per exhibit “ICL-1” that 6.00 pm to 10.00 pm in Turkey is 1.00 am to 5.00 am in Melbourne. I find that, it is more probable than not that Mr Q would have a specific recollection of arranging a family member to family member telephone call which required the mother and her children to speak in the early hours of the morning. The mother denies any such call. I accept the mother’ evidence. I reject Mr Q’s evidence about speaking to the mother by telephone.
Mr Q was then taken to the mother’s annexure of screenshots of a conversation in Turkish between Mr Q and the mother on Instagram dated May 2018, which was some three months after the children left Turkey. He was taken specifically to the messages that were interpreted by the Interpreter to read:
Mr Q: How are you my sister? My Name is Mr Q.
Mother: Good, Mr Q. How are you?
Mr Q: Thanks God, children are the same. Long time you left from here. When you are coming back? [Ms Q] couldn’t reach to you. We all worry.
Mother: Not coming, Mr Q.
Mr Q conceded that he understood that the mother had said in her message that she was not going back to Turkey. He says that he did not tell the father that the mother had said this because he says the mother was very positive about returning when he spoke to her via a WhatsApp audio call subsequently. Mr Q reiterated that the mother only told him in May or June 2019 that she was definitely not coming back to Turkey and that before then he was not exactly sure.
Mr Q gave evidence that when he spoke to the mother in Turkey about her travels to Australia, she told him she was going to visit her sick grandmother and that she and the children would be back in 15 days. He then stated that after the mother had been in Australia for two months, the mother told him she would stay in Australia a few more months. On that evidence, the mother told Mr Q in or around 18 April 2018 that she was staying a few more months. I asked why Mr Q was then messaging the mother in May 2018 asking when she would return if he knew she was only going to be away another month or so. His response was that he was only giving approximate timelines as he does not remember the dates.
I did not find Mr Q to be a credible witness. I do not accept his evidence where it conflicts with the evidence of the mother.
Mr P (SCA witness)
Mr P is the brother in law of the father. He gave evidence that he speaks to the father on the phone once a month.
Mr P deposes in his affidavit signed 1 June 2020, that in April 2019, whilst attending a wedding of a relative, he, Mr M, the paternal grandfather and the father spoke to the mother’s uncle Mr W. Mr P deposes that [6-7]:
It was on or about April 2019, that I went to B Town for wedding of a relative. During this visit in [Suburb U of B Town] I met the father. Present was also the father’s father Mr V, the father’s cousin Mr M and the mother’s uncle Mr W who was visiting his mother-in-law in B Town. While we were all together the father asked from Mr W to help the mother and the Children return to Turkey. The father was suspicious that the mother’s parents might be forcing her to stay in Australia, the way they forced her into the fake marriage with Mr BB.
To the best of my recollection the father said words to the effect of “I think my in-laws Mr G Metin and Ms T Metin might be trying to convince the mother to stay there. Please Help me.” I recall Mr W telling the father words to the effect of “I can only guess what it means to be separate from your children my dear the father, that is why I will speak with the mother, Mr G Metin and Ms T Metin. When I spoke to her, the mother wasn’t saying she would not return, anyway. She told me she was unable to return due to her illness.” Upon that, the father told [Mr W] words to the effect of “Uncle [Mr W], I can do anything necessary for her treatment. I can send her money for her treatment. Or we can go to the best doctors, hospitals here. As long as they return.” [Mr W] told the father and us that he would do anything he could and that the Children should not stay away from their father. the father looked like he was happy hearing the support of [Mr W] in that manner.
In cross examination, Mr P, stated that he spoke to Mr W in February 2018 and that Mr W told Mr P, the father and Mr M that the mother was not returning to Turkey. When asked if there was a conversation in April 2019 where he was told the mother was not coming back, he responded: “All I know is that she is not coming back”. In re-examination Mr P confirmed that he spoke to Mr W in February 2018 and that the mother had been in Australia for approximately one month when the conversation took place.
Mr P’s oral evidence was completely at odds with his affidavit evidence. I accept his oral evidence.
Mr O (SCA witness)
Mr O deposes in his affidavit signed 31 May 2020 that he is a distant relative of the parents and that he has a relationship with the maternal grandparents in that he is neighbours with the paternal grandfather’s step mother so would see the paternal grandparents when they travelled to Turkey and the paternal grandfather would ask him to help his step mother in Turkey sometimes. Mr O also says his wife and the mother were “like sisters” and had a close relationship.
Mr O says he telephoned the paternal grandfather in around May or June 2018 to convey his sympathies for the paternal grandfather’s mother in law still being unwell and that in late February 2019 he telephoned the paternal grandfather again to ask about the mother. He said that the paternal grandfather confirmed that the mother would be returning after her medical treatment has concluded. Mr O says it was not until 6 May 2019 that he was told by father that the mother was not returning. Mr O says he called the paternal grandfather the next day and that the paternal grandfather told him that the mother was not returning.
The maternal grandmother was asked if she knew Mr O and she responded that she did not know him and had never heard of him. She gave evidence that the paternal grandfather had never mentioned him or mentioned speaking to such a person. She maintained that if the paternal grandfather had spoken to Mr O as Mr O deposes he did, then the paternal grandfather would have mentioned him as being a distant relative. The mother had opportunity to put her father on affidavit and has not done so. I assume, therefore, that the maternal grandfather’s evidence would not have assisted her case. However, this conclusion does not enhance Mr O’s evidence which I find to be of no consequence or assistance in determining the issues at hand. Being told by the father and maternal grandfather in May 2019 that the mother and children would not be returning does not disprove the mother’s allegation that she said that she would not be returning within weeks of arriving in Australia in February 2018 particularly as his exposure to the maternal family appears, on his own evidence, to be sporadic.
The mother denies ever having spoken to Mr O on the phone and the maternal grandmother denies having ever spoken to Mr O. When asked for a record of the phone calls, Mr O responded that as he is a distant relative he does not need to keep a report of the calls and that he has no record otherwise as he changed his phone and WhatsApp account 6 months ago. Mr O also gave evidence that the mother and his wife are “like sisters” and talk constantly. Curiously, however, Ms O was not a witness for the SCA.
I place no weight on Mr O’s evidence.
Mr M (SCA witness)
Mr M deposes in his affidavit 31 May 2020, that he is a cousin of the father. He knows the mother as the maternal grandfather is the step-son of Mr M’s father’s maternal aunt.
Mr M deposes to being at the wedding with Mr W, the father, Mr P and the paternal grandfather in April 2019. Mr M deposes that the father was speaking to Mr W to ask for help with getting the mother and children back to Turkey as he was concerned that the mother’s family were putting pressure on the mother to stay in Australia. Mr M deposes that Mr W told the father that the mother and her parents have told him “repeatedly” that the mother will return to Turkey when she has finished her medical treatment.
Mr M’s evidence is riddled with hearsay and does not assist me to determine the issues at hand. I give it no weight.
The mother
The mother impressed me as a sincere witness. She readily conceded having entered into subterfuge about her motivations for coming to Australia such as telling X’s school that X’s had to visit her gravely ill great grandmother in Melbourne and that she had been told that she required medical treatment whilst in Australia. However, as to the relevant facts, her evidence was not shaken.
Ms Wilson, counsel for the SCA, had the mother concede that the translated text messages reproduced by the mother and annexed to the affidavit sworn by her on 10 June 2020 could be easily changed and edited. It was impressively done. However, the mother sounded credible when she denied having edited the messages. She was not defensive. She made the concession without hesitation. Ultimately, this line of cross examination is not of assistance to me because the SCA rely on the father’s evidence which was, as mentioned above, that the texts did not exist, as opposed to the texts having been altered or tampered with.
In final addresses counsel for the mother and the ICL both commented on the demeanour of mother as being consistent with a victim of family violence, particularly the coercive controlling family violence. It is not necessary for me to consider the truth of the mother’s allegations about family violence at this stage. However, in the context of matters that fall for determination now, the mother did impress me as having the demeanour described. This goes a considerable way to explaining why the mother appeared to have felt unrestrained about messaging the father in the confrontational and provocative manner she did upon arriving in Australia. My impression is that the mother felt protected, emboldened and almost disinhibited by being back in Australia and in the care of her family and living with a sense of freedom. The SCA queried why the mother would be so defiant about retaining the children when the father may have responded by initiating a return proceeding through the Turkish Central Authority. The mother’s evidence was that she thought that, if she could retain the children for a year, they would be allowed to stay in Australia. Whereas, that is incorrect, it is consistent with the mother’s case that she kept the father conversing by text for a year (28 February 2018 to 20 March 2019) and then ceased communication other than between the father and the children. To the extent that the mother took a calculated risk in not being circumspect about her decision to remain in Australia, one must give her credit for being able to read the father and predict how he would react.
The father’s appeal was dismissed by the plurality of the UK Supreme Court. The Supreme Court reiterated that habitual residence was a question of fact that required an evaluation of all relevant circumstances. It considered the situation of the child, with the purposes and intentions of the parents merely being among the relevant factors. The important element was the stability of the residence not the permanency of it. The Supreme Court held that there was no requirement that there should be a particular period of time that the children needed to have been resident in Scotland before acquiring habitual residence there, nor need there be an intention on the part of one, or both, parents to reside there permanently or indefinitely. It was held that, in failing to consider the stability of the mother’s and the children’s lives in Scotland, the Extra Division had not taken into account their social and family environment there.
Lord Reed who delivered the judgment for the Supreme Court, noted at [16]:
It is … the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.
In Re LC (A Child)(Custody: Habitual Residence)(Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1 the Supreme Court considered the relevance of a child’s views to the child’s habitual residence. A Spanish mother took the four children aged 13, 11, 9 and 5 to live in Spain. When the children went to England for the Christmas holidays with their English father, they did not return. It was alleged that the 13 year old objected to return within the meaning of Article 13 of the 1980 Convention. A Children and Family Court Advisory Support Services (UK) report discussed the eldest child’s state of mind as:- [48]
a)She has hated Spain;
b)They had not had a home of their own but only a temporary home in the flat of the maternal grandmother;
c)They had attended poor schools which the mother had chosen only because they had been local and convenient;
d)The mother had been pursuing an affair and had neglected them;
e)“Spain has never been home – it is a bit unreasonable to say that”; and
f)She could not settle in Spain.
[48]Re LC (Children) [2014] UKSC 1 per Lord Wilson with whom Lords, Toulson and Hodge agree, [26].
The Court of Appeal agreed that the oldest child, 13 years old, objected in the relevant sense and that the lower court had erred in not exercising its discretion to refuse to order her to Spain. The father then appealed to the Supreme Court on the basis that the trial judge had not taken the views of the middle children into account, interpreting them as merely preferences rather than objections to returning to Spain. The Supreme Court allowed the Appeal, and in doing so, said that a child’s state of mind, particularly that of an adolescent, could be taken into account in determining habitual residence. In a minority judgment, Lady Hale and Lord Sumpton also countenanced that the state of mind of each of the middle children (aged ten years and eight years at the trial) were relevant to whether that child had attained a degree of integration in the new state and thereby, a determination of the place of habitual residence of the children. In this current case, the Family Consultant, was directed to assess the state of mind of X and Y as to where they felt that they belonged, that is, their habitual residence.
In Re B (A Child) (Habitual Residence: Inherent Jurisdiction),[49] the Supreme Court (UK) considered at which point habitual residence was lost. Lord Wilson, with whom Lady Hale and Lord Toulson agreed, held that the subject children did not lose their habitual residence immediately upon removal from the first jurisdiction, even where there was a settled intention that they would no longer live there. Their Honours’ reasoning was that children lose their habitual residence only when they achieve the required degree of disengagement from the jurisdiction. The parents of the child were a same-sex couple who had been in a relationship until 2011. In February 2014, the respondent birth mother, a British national of Pakistani ethnicity, went to live in Pakistan with the aim of entering into a business partnership. On 13 February 2014, the other mother (who was the appellant) became aware that their daughter had been removed from her home but was unaware that she had been taken abroad. She issued an application under the Children Act 1989 for leave to apply for shared residence of the child or for access. Both the High Court and the Court of Appeal were satisfied that the child had been lawfully removed by her birth mother who had sole parental responsibility and a settled intention of making a new life abroad. The Court of Appeal upheld the first instance decision to dismiss the other mother’s application for shared residence of the seven-year-old daughter on the basis that, by the time the application had been made by the other mother, the child had lost her habitual residence in England.
[49] [2016] UKSC 4.
In the Supreme Court, Lord Wilson disagreed with the analysis at first instance and at intermediary appellate level. He noted that two consequences flowed from the “modern international concept of habitual residence”. First, that it was not in a child’s interests to be left without a habitual residence. Second, that the domestic interpretation of habitual residence should be consonant with its international interpretation. A third issue was whether the point at which habitual residence was considered to be lost required adjustment following the court’s adoption of the European concept of habitual residence in A v A and Another (Children: Habitual Residence) cited earlier in these reasons at [154].
Lord Wilson reasoned:
[28] A child's habitual residence is also the thread which unites the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the 1980 Convention”). This Convention applies to a child habitually resident in a contracting state immediately before his wrongful removal or retention: article 4. It is the law of that state which dictates whether his removal or retention was wrongful: article 3(a). It is that state to which, subject to exceptions, other contracting states must order the child to be returned: article 12. Under the Hague Convention on Jurisdiction etc 1996 it is, again, the courts of the contracting state of the child's habitual residence which, as against other contracting states, has jurisdiction to make orders for his protection: article 5(1).
[29] Regulation B2R extends beyond the identification of jurisdiction as between EU states themselves. It binds each EU state irrespective of whether the other state with potential jurisdiction is an EU state. […]
[30] Two consequences flow from the modern international primacy of the concept of a child's habitual residence. The first is that, as Reunite submits to this court and as the respondent broadly accepts, it is not in the interests of children routinely to be left without a habitual residence. In that event the machinery of international instruments designed to achieve an orderly resolution of issues relating to them does not operate as primarily intended. Indeed, if they are unilaterally removed from a state in which they were not habitually resident, those aggrieved by their removal can have no recourse to the 1980 Convention. […]
[31] The second consequence is that the interpretation in the courts of England and Wales of the concept of habitual residence should be consonant with its international interpretation: see the judgment of the Court of Justice of the European Union (“the CJEU”) in Proceedings brought by A [2010] Fam 42, para 34. Its traditional interpretation in England and Wales has been substantially influenced by the stance adopted by one or both of the parents, often at the expense of focus on the child's own situation. By way of example, our courts had accepted a proposition that one parent with parental responsibility could not achieve a change in the child's habitual residence without the consent of the other parent with parental responsibility: Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 892 E-H and 896 B. This court has now held that proposition to be wrong: In re R (Children) [2015] UKSC 35; [2016] AC 760 . By way of another example, our old law largely proceeded by reference to a proposition that a child's habitual residence would necessarily follow the habitual residence of the parent with whom he lived: see the discussion of it in In re LC (Children) [2014] UKSC 1; [2014] AC 1038, para 33. But it was held in the LC case, at paras 34 to 37, that the international interpretation of habitual residence required that proposition to be relaxed.
[…]
[45] I conclude that the modern concept of habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed [the child]. The concept operates in the expectation that, when a child gains a new habitual residence, he loses this old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or better, disengagement) from it. (emphasis in original)
[46] … The identification of a child’s habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him:
1. the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;
2. the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and
3. were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement.
Lord Wilson concluded his analysis [44] with a quote from the Opinion of Advocate General Kokott in In Proceedings brought by A, that all the circumstances in the case must be taken into account where there is a change of place. He described the necessary process as follows: [50]
This should be a composite consideration of all the circumstances in the new environment and as a mirror image, in the old environment in order to determine whether habitual residence has shifted from the latter to the former.
[50] Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 [54].
In their joint judgment, Lady Hale and Lord Toulson supported Lord Wilson’s decision and add a pragmatic perspective. They say:
[57] We agree fully with Lord Wilson's reasoning and conclusion on the issue of habitual residence. He has described the identification of a child's habitual residence as overarchingly a question of fact (para 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law, because the concept is a matter of law but its application is a matter of fact. We do not, however, understand Lord Wilson to be laying down a rule of law that a child must always have an habitual residence: rather that, as a matter of fact, the loss of an established habitual residence in a single day before having gained a new one would be unusual. In this particular case, although the respondent said that her intentions were permanent, looked at from the child's point of view, on the relevant date they had been in Pakistan for only nine days, they had no home there, and she had not yet been entered into a school. Had the respondent then changed her mind and decided that the move was a bad idea, it is unlikely that a court would have held that the habitual residence of either of them had changed during those few days.
The mother does not contend that the father ever intended that the habitual residence of the children would change from Turkey to Australia. The finding for which the mother contends is that the children’s place of habitual residence changed whilst they were in her sole care in Australia and without input by the father. With all of the recent decisions embracing the child’s experience as the appropriate perspective from which to view the multifarious circumstances that can bear on where a child belongs, there should, if possible, be some reconciliation of the following authoritative statements.
a)In 2009, in LK the High Court of Australia observed that: [51]
neither parent can unilaterally change [the] place of residence [of a child]. The assent of the other parent (or a court order) would be necessary;
b)In 2016, in Re B (A Child) (Habitual Residence: Inherent Jurisdiction),[52] Lord Wilson observed[53]
By way of example, our courts had accepted a proposition that one parent with parental responsibility could not achieve a change in the child's habitual residence without the consent of the other parent with parental responsibility: Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 892 E-H and 896 B. This court has now held that proposition to be wrong: In re R (Children) [2015] UKSC 35; [2016] AC 760.
[51] [34] extracted earlier in these reasons at [153].
[52] [2016] UKSC 4.
[53] [31] extracted earlier in these reasons at [164].
The decision of the High Court in LK is binding upon me. A decision of the UK Supreme Court is highly persuasive.
In LK and Re B the apex courts of both states were adopting and applying what Lord Wilson referred to as “the modern concept of habitual residence”. [54] Our apex court followed New Zealand’s jurisprudence in Punter’s case and the UK Supreme Court decided consistently with its earlier decision in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre Intervening) [2014] 1 FLR 111 which had adopted the test used by the European courts of which Mercredi v Chaffe (2010) Case C-497/10 PPU is an exemplar. In LK, their Honours accepted that the mother had been working systematically to integrate the children into life in Australia, on notice to the father, before she and the children departed Israel and that those endeavours were part of a joint intention to allow the mother to relocate. Accordingly, in LK there was no divergence in parental intention, both parents were ultimately found to have intended that the children would remain in Australia unless the parents reconciled. The issue of one parent unilaterally changing habitual residence did not arise.
[54]Re B (A Child) (Habitual Residence: Inherent Jurisdiction), [45] extracted earlier in these reasons at [164].
In Re B (A Child) (Habitual Residence: Inherent Jurisdiction), the birth mother was the only parent with parental responsibility for the child and it was accepted that her intention in travelling to Pakistan with the child was for them to reside in Pakistan permanently. Notwithstanding, on a narrow 3:2 majority, the Supreme Court rejected the birth mother’s claim that the child’s habitual residence had changed in the nine days that the child had been in Pakistan. In doing so, Lady Hale and Lord Toulson, who supported Lord Wilson, identified that the child’s “point of view” only nine days after she entered Pakistan and not then having started school was different from and to be accorded more weight in the determination of habitual residence than the birth mother’s intention to reside permanently in Pakistan.
After the Supreme Court decision in in A v A and Another (Children: Habitual Residence) but before its decision Re B (A Child) (Habitual Residence: Inherent Jurisdiction), , the inappropriateness of the “rule” that where both parents had parental responsibility neither could unilaterally change the child’s habitual residence was clearly explained in the Court of Appeal decision of Lady Justice Black (as she then was) In re H (Children) (Reunite International Child Abduction Centre intervening) [2015] 1 WLR 863. There Black LJ held that the “rule” had been superseded by a factual enquiry into where the child was habitually resident tailored to the circumstances of the individual case as a part of which the court could take into account parental intention.
Most respectfully, in my view is that the above authorities can be reconciled as permitting the following propositions in relation to one parent be able to unilaterally change the habitual residence of a child:
a)First, one parent cannot, by intention alone, unilaterally alter a child’s habitual residence. It is not a matter where wishing will make it so;
b)Second, the most important inquiry is around the child’s actual experience and perspective. Parental intention may be relevant but will not prevail over the child’s life experience and outlook;
c)Third, any change of habitual residence will necessarily be based, in no small part, on the child’s integration into the new contracting state towards a point at which the child’s residence in that place can be characterised as habitual;
d)Fourth, one parent can act unilaterally of the other parent to bring about a change the habitual residence of a child by facilitating the child’s integration and assimilation into the new environment. It is, however, the child’s assimilation, rather than the taking parent’s intention or mindset, which drives the change in habitual residence;
e)Fifth, the younger the child and the more relevant parental intention may be given that a young child has a limited capacity to integrate into a community. That does not leave a young child without a habitual residence but it will likely bring other circumstances to the fore;
f)Sixth, the fact that one parent neither sanctions nor wants a child’s move to or retention in another country will not prevent the child from becoming habitually resident in the state to which the child is taken or in which the child is retained where the change in habitual residence can be demonstrated to be based on the child’s lived experience of being integrated to some degree into the new community and any age appropriate reorientation of the child’s perspective on where the child belongs.
Whilst not relevant on the facts of this case, I having found that X and Y were retained by the earlier date of 3 March 2018, Article 7 of 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”) which is partially implemented into Australian law by s. 111CE of the Family Law Act 1975, is of interest. Article 7 of the 1996 Convention provides that, subject to specified exceptions, a member state where child had been habitually resident before being wrongfully removed or retained would keep jurisdiction notwithstanding the child’s physical presence in another state. The associated considerations, which are wholly outside the scope of this decision, include the import of Article 7 between Australia and a state in respect of which the1996 Convention has not entered into force for Australia and the relationship between the 1996 Convention and 1980 Convention and the construction of Article 50 of the 1996 Convention. Also of interest, but again not arising in this decision, is the extent to which the assent of the other parent or a court order can change habitual residence (as referred to by our High Court in LK and extracted at [167(a)] above). The view of our High Court is in contrast to Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, an authority on the non-effect of parental agreement on the child’s habitual residence. See also the recent US Supreme Court decision in Monasky v Taglieri 589 U.S.__ (2020) delivered on 25 February 2020 as to the significance of parental agreement to the identification of habitual residence.
Finally, from the perspective of uniformity of interpretation of international instruments between contracting states, in May 2018, the Supreme Court of Canada decided Office of the Children’s Lawyer v. Balev [2018] 1 SCR 398, a case for which the result was moot but which the Supreme Court used as a vehicle to re-direct Canadian jurisprudence around habitual residence. The Supreme Court of Canada held, by a 6:3 majority, that a “hybrid approach” should be adopted to determining habitual residence under Article 3 of the Hague Convention. McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon and Brown JJ made the following observations:[55]
Only one requirement of Article 3 is challenged in this case — whether the children were habitually resident in Germany at the time of the wrongful retention. […]. The central question here is how an application judge should determine the question of a child’s habitual residence. There are three possible approaches: the parental intention approach, the child‑centred approach, and, the hybrid approach. Currently, the parental intention approach dominates Canadian jurisprudence and determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives. Under this approach, time‑limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. The judge considers all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B. Considerations include the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis. The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children. But, there is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child. Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances. The hybrid approach is fact‑bound, practical, and unencumbered with rigid rules, formulas, or presumptions.
The clear trend of Hague Convention jurisprudence is rejection of the parental intention approach and to adoption of the multi‑factored hybrid approach. The hybrid approach should be adopted in Canada because (1) the principle of harmonization supports this approach; and (2) it best conforms to the text, structure and purpose of the Hague Convention. A clear purpose of multilateral treaties is to harmonize parties’ domestic laws around agreed‑upon rules, practices, and principles. The Hague Convention was intended to establish procedures common to all the contracting states that would ensure the prompt return of children. To avoid frustrating the harmonizing purpose behind the Hague Convention, domestic courts should give serious consideration to decisions by the courts of other contracting states on its meaning and application. In the end, the best assurance of certainty lies in following the developing international jurisprudence that supports a multi‑factored hybrid approach. Furthermore, the hybrid approach best fulfils the goals of prompt return: (1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, (2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and (3) protecting the child from the harmful effects of wrongful removal or retention.
Under the hybrid approach, a child’s habitual residence can change whilst a child is staying with one parent under the time‑limited consent of the other. The judge will consider the intention of the parents that the move would be temporary, and the reasons for that agreement but also considers all other evidence relevant to the child’s habitual residence.
[55]Office of the Children’s Lawyer v. Balev [2018] 1 SCR 398, 400-401 [Opening Summary].
There appear to be several propositions from the cases discussed above, in no order of importance:
a)Habitual residence is a factual issue to be resolved by a factual enquiry guided by legal concepts;
b)A child should have one place of habitual residence. When a child gains a new habitual residence, the child loses the old one;
c)Identification of habitual residence requires evaluation of all relevant circumstances from the child’s perspective;
d)The purposes, intentions and agreements between parents are merely relevant factors;
e)The important element is the stability of the residence and not the permanency of it;
f)Children do not lose their habitual residence immediately upon removal from a jurisdiction, even where there is a settled intention that they will no longer live there;
g)There is no particular time by which it can be assumed that habitual residence will change to the destination state;
h)One parent cannot, by intention alone, unilaterally change a child’s habitual residence without the consent of the other party;
i)A child’s habitual residence not necessarily follow that of the habitual residence of the parent with whom they live;
j)The deeper the child’s integration in the old state probably the less fast will be the child’s integration in the new state;
k)The greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day to day lie in the new state, probably the faster the child’s integration will be;
l)Where all the central members of the child’s life in the old state have moved with the child, probably the faster the child’s integration into the new state will be;
m)A child’s state of mind, particularly that of an adolescent, can be taken into account in determining habitual residence. A minority decision also countenanced that the state of mind of children aged ten years and eight years as relevant to whether that child had attained a degree of integration in the new state;
n)There can be a composite consideration, or comparison, of all circumstances in the new environment with the mirror image in the old environment in order to determine whether there has been a shift in habitual residence;
o)The harmonizing purpose behind the 1980 Convention is best served by developing international jurisprudence which is consistent as between contacting states and, thereby, readily accessible by domestic judges in contracting states who may not be familiar with Hague jurisprudence. The concept of habitual residence should be consonant with its international interpretation.
Propositions are not rules, at best they are markers to remind one of consideration given by other judicial officers to similar factual scenarios which have come before them. As Professor Nigel Lowe QC (Hon), co-author of International Movement of Children Law, Practice and Procedure (Second Edition) has commented informally, the running theme of all these decisions is that habitual residence is a factual test - nothing more, nothing less.
Turning to X and Y, it is contended by the mother that the children had ceased to be habitually resident in Turkey prior to 6 May 2019.
The Family Consultant was asked, if possible, to assess as at 6 May 2019 the children’s perception of Turkey as his/her home. She responded that whilst both X and Y identified Turkey as the place where they were born and where they lived with their parents for a number of years, as at 6 May 2019, it would appear that X had already become aware that she, together with her mother and her brother, would not be returning to Turkey and would continue to live in Australia.
The Family Consultant considered (and I agree) that concept of ‘habitual residence’ is likely to be perceived by young children, as the place where they reside with a parent with whom they have formed their primary attachment relationships and where the routine and predictable activities of daily life take place. Then, she opined “[for] X and Y, as at 06/05/2019, it is likely that their view of ‘habitual residence’ would have been in Melbourne.
The Family Consultant was asked, if possible, to assess to what extent the children had assimilated into life in Australia, as at 6 May 2020, and whether they regarded Australia as their home. The Family Consultant observed that as at 6 May 2019, the children are likely to have felt settled in Australia. Their living arrangements remained stable and secure with their maternal grandparents, and they enjoyed being part of a close, loving and supportive extended family group. X had been attending the same primary school for over twelve months, and Y had commenced Grade Prep, having attended four year old kinder in 2018. The children were attending the Mosque each week with their grandfather, had made friends at school and with children at the Mosque. Whilst the children made no direct comments in this regard, it is likely, given their age and developmental stage, that by May 2019, they perceived Australia to be their home.
Although it has no bearing on the outcome of this case, I am comfortably satisfied that the children were habitually resident in Australia by May 2019 and had been so for a considerable period. It follows that, had a found the date of retention to be 6 May 2019, as contended for by the applicant SCA, its application would have been dismissed for not meeting the jurisdictional requirement of reg 16(1A)(b).
If the application filed 16 April 2020 was filed more than one year after the mother first retained the children, are the children now settled in Australia?
As to whether the children, or either of them, are now settled in Australia, the Family Consultant opined:
43.X and Y appear to have settled in Australia. Over the last two years, they have established positive relationships with their maternal family. They have continued to reside with their maternal grandparents and their uncle and aunt. Their great maternal grandmother lives across the road. They have a number of cousins who live nearby, and from their narrative it would appear that this is a close knit family who spend regular time together on a weekly basis.
44.At the beginning of 2020, X commenced her third year at primary school since arriving in Australia in February 2018 and Y commenced his second year at primary school , having attended four year old kinder in 2018. Both the children have reportedly made significant progress with their English language and are able to express themselves competently both verbally and in writing. Their school reports for Semester Two of 2019 reflect that both the children are performing well within the academic standards expected at this level, their social development is good, with both the children having positive interactions with their teachers and their peers, and there are no concerns raised about their behaviour at school or at home.
45.In her Affidavit filed on 05/05/2020, Ms Metin stated that she and the children continue to celebrate traditional Islamic celebrations with the extended maternal family. Pre the COVID-19 pandemic, X and Y attended the Mosque with their maternal grandfather each Sunday, for religious studies, (confirmed by the children), X regularly received invitations to attend her class mates’ birthday parties, and both children have participated with their cousins in celebrating events such as Halloween, Easter and Christmas.
The Family Consultant was requested to assess what (if any) objections the children have to returning to Turkey. Whilst the line of questioning is not within the scope of this hearing, the answers given by the children include views which, in my assessment, go both to the degree to which they are now integrated into life in Australia and are settled. When invited to consider any differences in his experience of living in Turkey and living in Australia, Y identified having very close relationships with his extended maternal family, including cousins with whom he plays a number of times a week (pre COVID-19). Y said: “I would be very sad to go back I would miss [maternal grandparents] and I would miss my cousins a lot and a lot.” When asked directly about missing his father and family in Turkey, Y said: “I kind of miss my dad but not all the time…..our cousins in Turkey do not live nearby to us…we didn’t see them much .”
The Family Consultant observed both X and Y were very animated when describing the physical environment of their school and their enjoyment of this. They have made friends at school and over the last two years, they have established positive and significant relationships with their maternal family and it would appear that weekends are spent with the extended family. The Family Consultant referred to the children as being resilient. She observed them to have integrated easily and thoroughly into life in Australia. She also opined that they are resilient enough to re-integrate into life in Turkey in the care of the mother. Re-integration in Turkey would be relevant if this was a discretionary disposition but it is not and I have no power under the Regulations to order the children to return to Turkey if they are now settled in Australia.
When asked by me whether she has any doubt that the children were settled in Australia, the Family Consultant said that she had no doubt.
I find that the children, X and Y, are settled in Australia.
Conclusion
The parties agree that the mother has retained X and Y in Australia without the father’s consent. The differences between them are ones of timing and consequences of timing. As to controversial matters, I have found:
a)The mother formed a subjective intention to retain X and Y in Australia in late February/March 2018 upon which she objectively acted by sending the father text messages saying that the children would not be returning and their marriage relationship was over.
b)The date of retention is 3 March 2018;
c)The mother did not return the children as and when agreed, being 10 March 2018;
d)The children were habitually resident in Turkey immediately prior to the retention and the retention is, therefore, a wrongful retention;
e)The return application was filed (on 16 April 2020) more than 12 months after the wrongful retention;
f)Both children are now settled in Australia within the meaning of reg 16(2).
By virtue of finding that the children are settled, the Regulations cease to apply and the return remedy under the Regulations is not available to the applicant SCA. The application of the SCA must be dismissed.
A major feature of the 1980 Convention and our Regulations is to provide prompt repatriation of children who are wrongfully retained out of a country where they belong, with which they are familiar and where evidence and people relevant to their future parenting arrangements are located. This was a retention of the most blatant kind. However, the Court is applying a forum selection treaty which provides a prompt return remedy preconditioned on a number of factors. The drafters of the 1980 Convention negotiated a period of up to 12 months from the time of removal or retention as the temporal precondition for a mandatory return in a case to which the exceptions do not apply. The time of 12 months is arbitrary but the consequences which flow from its application are anything but arbitrary, they are child focussed and designed to minimise the harmful effects of international parental child abduction on the children concerned.
Because more than 12 months has passed since the wrongful retention, the Court must look at the particular circumstances of each child and then can only order a return if the child is not settled. That safeguard is as much a part of the policy underpinning the 1980 Convention as is the prompt return remedy. The timing of the father’s return application was in his hands. His oral evidence was that he knew at all times about how to invoke his rights under the 1980 Convention. I do not know whether to believe him on that point but that was the evidence he gave. Regardless of why the father did not move earlier to seek a return through the Turkish Central Authority, it was the father who decided to wait until the children had been living here for more than two years. As a consequence of the delay, the children have assimilated into life in Melbourne to an extent that there now needs to be an agreement between the parents or a judicial determination under Australian law as to what parenting arrangement is in the best interests of X and Y.
As indicated at the commencement of these reasons, any future parenting proceedings can be expedited. If, because I have made adverse findings as to his credit, the father wants a judge other than myself to deal with further parenting proceedings, he can make that application although it is for each judge to accord priority for hearing within his/her own docket and to decide dispensation with the Rules of Court about formal applications and procedures.
For the aforementioned reasons, I am satisfied that the orders set out at the beginning of these reasons give effect to the Regulations.
I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 July 2020.
Associate:
Date: 7 July 2020
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