Sun & Long

[2019] FamCA 3

FAMILY COURT OF AUSTRALIA

SUN & LONG [2019] FamCA 3

FAMILY LAW – CHILDREN – Recovery order – Anti-suit injunction – Interim parenting orders – Where the mother seeks that a recovery order be made – Where the mother seeks that the father be restrained from proceeding with his parenting application in China – Where the mother seeks interim orders that she have sole parental responsibility for the child – Where the mother seeks interim orders that the child live with her – Where the father asserts that there is no jurisdictional basis for consideration of the mother’s application by this Court – Where the Court finds that the child was not habitually resident in Australia – Where the Court declines to make orders sought by the mother on a jurisdictional basis.

Family Law Act 1975 (Cth) ss. 69E(1), 111CD(1)(e)

Alfarsi & Elhage [2016] FamCA 428
Bunyon & Lewis (No 3) [2013] FamCA 888
InRe B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606
Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA)
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 CA
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
State Central Authority & Camden (2012) FLC 93-501
Commonwealth v Muratore (1978) 141 CLR 296
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

APPLICANT: Ms Sun

RESPONDENT: Mr Long

FILE NUMBER: SYC 6578 of 2018

DATE DELIVERED: 11 January 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 19 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Brighton Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Jurisbridge Legal

Orders

1. Paragraphs 1, 6, 7, 8 and 9 of the final orders sought in the mother’s Amended Initiating Application filed on 29 November 2018 be dismissed

2. Paragraphs 1 and 2 of the interim orders sought in the mother’s Amended Initiating Application filed on 29 November 2018 be dismissed.

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 Sun & Long 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 SYDNEY

FILE NUMBER: SYC 6578 of 2018

Ms Sun

Applicant

And

Mr Long

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Initiating Application filed on 29 November 2018, the mother has sought various orders in relation to the parties’ child, Z, born in 2016 (“the child”). 

2. The orders pressed by the mother in these proceedings are for the recovery of the child and an anti-suit injunction restraining the father from proceeding with his application for parenting orders in the People's Republic of China. 

3. The mother also seeks interim orders that she have sole parental responsibility for the child and that the child live with her.

4. The father contends that the Family Court of Australia lacks jurisdiction to consider the mother’s application, in that regard, on the basis that the child is not habitually resident in Australia.

Evidence

1. At the hearing, the mother relied upon the following documents:

   a)Her Affidavit filed on 29 November 2018;

   b)Her Affidavit filed on 11 December 2018; and

   c)Affidavit of Ms O filed on 29 November 2018.

2. The father sought to rely upon several Affidavits filed on his behalf, however, in light of objections made by Counsel for the mother, the father’s case was presented on the basis of his Affidavit filed on 19 November 2018.

Background facts

1. The father was born in 1959 and is currently aged 59 years. 

2. The mother was born in 1984 and is currently aged 34 years.

3. In 2015, the parties commenced living together.

4. In 2015, the parties were married. 

5. The parties are both citizens of the People's Republic of China.  The father has also been a permanent resident of Australia since 2007.

6. On 15 April 2016, the mother, through a migration agent, applied for an Australian Partner (Temporary) Visa (subclass 820).  However, that application was withdrawn on 15 September 2017.  The parties are in disagreement as to whether that application was withdrawn at the request of the father or the mother, as well as the circumstances surrounding that withdrawal.  That difference is irrelevant in these proceedings.

7. In 2016, the child was born in Australia.  The child is an Australian citizen.

8. In February 2017, the father purchased a property at B Street, Suburb C NSW … (“the Suburb C property”).  The Suburb C property has since been sold.

9. Also in February 2017, the parties accepted a provisional placement for the child at D School, commencing 2022.  In that regard, at paragraph 15 of his Affidavit filed on 19 November 2018, the father states:

   [The mother] and I planned to raise [the child] in Australia after she became pregnant.  As such I purchased a large family home for us to live in at Suburb C NSW, and enrolled [the child] in [D School] ('[DS]') within one month of her birth.

10. On or about 3 May 2017, after spending a period of approximately one month in New Zealand, the parties and the child left Sydney and returned to China.  In that regard, at paragraph 16 of his Affidavit filed 19 November 2018, the father states:

    Our plan was to stay in China for a little while, so [the child] can spend some time with her parents and relatives and then we would still return to and reside in Australia. We lived together from that date until 22 June 2018 at [E Street, Suburb F, City G], China (the [Suburb F] Residence).

11. The mother asserts that, between May 2017 and June 2018, she lived with the child and the maternal grandmother at the father's property in Suburb H.  She further asserts that:

    During this time, the [father] lived with us for about a third of the time. The longest consecutive period in which the [father] stayed with [the child] and me was one period of two weeks.

12. Comparatively, the father asserts that he was the primary carer of the child during that period.

13. There is little evidence in these proceedings regarding the childcare arrangements for the child and her daily activities between May 2017 and June 2018.  For the purpose of considering whether the Court has jurisdiction to make orders as sought by the mother, I accept the mother’s evidence at its highest.  That is, I accept that, prior to the father unilaterally taking the child from her care on 22 June 2018, the mother was the primary carer of the child.  The mother’s evidence, in that regard, is set out in her Affidavit filed on 29 November 2018, as follows:

    21. Since [the child’s] birth I had been her full time and primary carer. I breastfeed [the child] until she was 6 months old when I introduced her to solids. I continued breastfeeding her. I was still breastfeeding [the child] when the [father] removed her from my care on 22 June 2018.

    22. I am responsible for all of [the child’s] care including preparing her food, bathing and dressing her, changing her nappies, putting her to bed, taking her to medical appointments for check-ups and vaccinations, taking her on outings, singing and reading to her, playing with her and comforting her.

14. On 22 June 2018, the father unilaterally removed the child from the mother’s care.  At paragraph 25 of his Affidavit, the father states:

    When [the mother] agreed to a divorce, our formal separation commenced since 22 June 2018. I then planned to fly back to Australia with [the child] as we had always planned to do, as [the mother] had said to me many times 'If you want to return to Australia, you can take [the child] with you', also as I have always been the major carer of [the child], 1 did not think she would disagree with [the child] and I returning to Australia.

15. Annexed to the mother’s Affidavit filed on 29 November 2018 are various electronic messages sent between the parties on 22 June 2018, which have been translated into English.  When the father did not return the child after an outing to the zoo on 22 June 2018, the mother sent messages to him enquiring about their whereabouts.  The father sent a lengthy response to the mother some hours later, which included the following:

    … When you see this SMS I have already taken [the child] with me and about to fly overseas. Won’t come back to this country in the near future.

    … You will see [the child] again, but it will be after all the issues between us have been resolved, and when you deal with this matter calmly. Otherwise, it will affect [the child’s] frame of mind, it will affect her growth.

16. On 2 July 2018, the father and the child left China from City J Airport and travelled to various overseas destinations, including City K, City L and Europe.   

17. On 12 July 2018, the mother applied to the relevant court in China for parenting, child support and property orders.  Those proceedings have subsequently been withdrawn by the mother.

18. On 6 August 2018, the father applied to the relevant court in China for parenting and divorce orders.

19. The father and the child were present in Australia between 9 August and 29 September 2018, being a period of some 51 days.  The father asserts that, during that period, he hired “various nannies” to care for the child and that they moved their residence between “a series of serviced apartments in various locations around the city”.  Despite that evidence, I accept that during the period when the father and the child were in Australia, it is likely that the child spent most of her time at the father’s property at M Street, Suburb N NSW … (“the Suburb N property”).

20. The mother contends that, on 11 September 2018, the father's Chinese legal representatives informed a court in China that the father would provide the mother with the child's residential address.  Annexed to the Affidavit of Ms O, the mother’s Chinese legal representative, is a document said to be a translation of correspondence from Ms O to the mother, giving an account of the proceedings in China.  At paragraph 3 of that Affidavit, Ms O states:

    The translation of my letter annexed to this affidavit has been performed by an accredited translator in Australia.  I am unable to guarantee the accuracy of the translation.

21. At page 9 of that Affidavit, the translated letter of Ms O states:

    On 19 September 2018, the court again organized both parties to go to court for questionings concerning the behavioural restraint application.  The judge asked the lawyer acting for [the father] "According to written record of enquiry on 11 September 2018, [the father] agreed to provide written information about his daughter’s residential address from 22 June 20178 [sic] up to now.  Why has that not been provided?"  The lawyer acting for [the father] replied, "The child is currently residing in [M Street, Subrub O] [sic] NSW …, Australia.  That address is the current residential address for [the father] and [the child].

22. On 29 September 2018, the mother travelled to Australia and went to the Suburb N property, where the father’s legal representatives had informed the Chinese court that the child was residing.  The father and the child were not at that address at the time of the mother's arrival.

23. Annexed to the mother’s Affidavit filed on 29 November 2018 are a series of translated text messages between the parties on 29 September 2018, in which the mother requests to see the child.  In those messages, the father informed the mother that he and the child were on the Central Coast and that the child could spend time with her the following day.  At 9:55 pm that night, the father and the child boarded a flight to City K, where they remained until 9 October 2018.  

24. In October 2018, the mother applied for orders for the return of the child to Australia under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.  At the hearing of this application, Counsel for the mother advised the Court that on 18 December 2018, the Central Authority “closed its file because the child is in China”.

25. On 16 October 2018, the mother commenced proceedings in this Court.

26. On 3 December 2018, outside a court room in China, the father's legal representatives provided the mother’s legal representatives with the child’s residential address at that time, being the parties’ former matrimonial home in Suburb H.  

27. On 5 December 2018, the mother attended a hotel in Suburb H and spent approximately two hours with the child in what can only be described as unsatisfactory circumstances, which included the mother and child remaining in a locked room under the supervision of a number of the father’s representatives.

28. At the hearing, Counsel for the mother submitted that her client did not know the whereabouts of the child at that time, but stated that, as of the Friday before the hearing, being 14 December 2018, the child was in China.  It was not contended that the child was present in Australia at the date of the hearing and no evidence is placed before the Court to that effect.

Application

1. In her Amended Initiating Application filed on 29 November 2018, the mother seeks various parenting orders, the following of which were pressed at the hearing:

   Final orders sought

   ANTI-SUIT INJUNCTION

   1. Order that the Respondent father (the father) be restrained permanently from commencing and/or continuing any legal proceedings in the Peoples Republic of China against the Applicant mother for parenting orders or other orders in relation to the child of the marriage [Z] born … 2016 and in relation to a matrimonial cause including settlement of property and/or maintenance with regard to the wife and/or child.

   …

   RECOVERY ORDER

   6. That a Recovery Order issue forthwith for the child [Z] born … 2016 pursuant to s.67U of the Family Law Act 1975 (Cth).

   7. That pursuant to s.67O of the Family Law Act 1975 (Cth) the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:

   a. stop and search any vehicle, vessel or aircraft and search premises of places for the purpose of finding the child;

   b. recover the child;

   c. arrest, without warrant, the respondent in the event that the respondent again removes or talks possession of the child.

   8. That the Respondent father shall forthwith return the child to the Applicant mother.

   9. That pursuant to s.67X of the Family Law Act 1975 (Cth) should the father hinder or prevent any person authorised by the Court to take any action in relation to locating and/or recovering the child, a warrant issue forthwith for his arrest and he be imprisoned until further order. …

   Interim or procedural orders sought

   Until further order:

   1. The mother have sole parental responsibility for the child [Z] born … 2016.

   2. The child live with the mother. …

2. As stated, the father opposes the mother’s application, in that regard.

Evidentiary burden

1. In these proceedings, the Applicant carries the onus of establishing, on the balance of probabilities, the affirmative case which she asserts: Commonwealth v Muratore (1978) 141 CLR 296 at 302; Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 (“Zotkiewicz”) at 85,749.

Jurisdiction

1. The mother contends that the Court has jurisdiction to consider her application, pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth) (“the Act”), which relevantly provides:

   (1)  A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:

   …

   (e)  a child who is present in a non-Convention country, if:

   (i)  the child is habitually resident in Australia; and

   (ii)  any of paragraphs 69E(1)(b) to (e) applies to the child; or …

2. In that regard, s 69E(1) of the Act relevantly provides:

   (1)  Proceedings may be instituted under this Act in relation to a child only if:

   …

   (b)  the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

   (c)  a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (d)  a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (e)  it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

3. It is agreed that the child is an Australian citizen, in terms of s 69E(1)(b).

4. Counsel for the mother further asserted that the father is a permanent resident of Australia, which “connotes” ordinary residence, in terms of s 69E(1)(c).

5. However, Senior Counsel for the father contended that, in order to satisfy the requirements of s 111CD(1)(e) of the Act, it is necessary for the mother to establish that the child is habitually resident in Australia. It is only once that fact is established that the Court can then move to consider the application of paragraphs s 69E(1)(b) to (e) of the Act. For reasons which I will now set out, I respectfully agree with that construction of the relevant provisions.

6. In that regard, Alfarsi & Elhage [2016] FamCA 428 at [49], Foster J stated:

   … s 69E must be read subject to the provisions of ss 111CC and 111CD of the Act that provide a “series of qualifying connections” that must apply before this Court can exercise jurisdiction.

7. The requirement of s 111CD(1)(e) that the child be habitually resident in Australia is consistent with the following principle set out by the Supreme Court of the United Kingdom in InRe B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 at [27]:

   A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).

8. Accordingly, given that the child is an Australian citizen for the purposes of s 69E(1)(b) of the Act, the sole issue for determination in these proceedings is whether the child is habitually resident in Australia for the purposes of s 111CD(1)(e) of the Act.

Relevant date of habitual residence

1. During the course of the proceedings, I sought the assistance of Counsel as to the relevant date for which the Court is required to determine the child's habitual residence.  The dates canvassed were:

   a)22 June 2018, being the date that the father unilaterally removed the child from the mother’s care;

   b)29 September 2018, being the date that the father removed the child from Australia;

   c)16 October 2018, being the date that the mother instituted proceedings in this Court; or

   d)19 December 2018, being the date of the hearing.

2. During the Course of the hearing, Counsel for the mother contended that the relevant date for which it is necessary to determine whether the child was habitually resident in Australia is 16 October 2018, being the date that the mother instituted these proceedings. 

3. Senior Counsel for the father, on the other hand, contended that the relevant date is that of the hearing, being 19 December 2018, as follows:

   … to engage the jurisdiction of the Court or for the jurisdiction to be engaged, the Court must determine the child is habitually resident in Australia, not was, could be, might be in the future. It’s when you’re determining the issue.

4. I respectfully agree with that submission and note that it is consistent with the finding of Bennett J in Bunyon & Lewis (No 3) [2013] FamCA 888 at [185], where her Honour held that “s 111CD requires a finding as to habitual residence contemporaneously with the Court exercising its jurisdiction”.

1. Accordingly, the relevant date on which I am to determine whether the child was habitually resident in Australia is the date of the hearing, being 19 December 2018.

Habitual residence: the law

1. The term “habitually resident” is not defined the Act. However, in State Central Authority & Camden (2012) FLC 93-501 at 86,406, the Full Court assists with the definition of the term, as follows:

   41. The judgment of the High Court in LK makes it clear that “habitual residence” is to be distinguished from concepts such as domicile and that determining the settled purpose of the parents is important in the process but not necessarily decisive. At paragraph 22 of the joint judgment of French CJ, Gummow, Hayne, Heydon and Kiefel JJ, it was said:-

   “… The search must be for where a person resides and whether residence at that place can be described as habitual.”

   42. It was also said (at paragraph 25):-

   “… it may be accepted that ‘[h]abitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities’ (Scoles, Hay, Borchers and Symeonides, Conflict of Laws, 4th Ed (2004) at 247, 4.14)”

2. Further assistance is provided in Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA) (“Korutowska-Wooff v. Wooff”), where the Court of Appeal for Ontario reviewed relevant authorities in respect to the interpretation of that term in the context of cases involving the Hague Convention and stated:

   The term "habitually resident" is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of Re J. (A Minor) (Abduction: Custody Rights), [1990] 2 A.C. 562 (H.L.), and R. v. Barnet London Borough Council, [1983] 2 A.C. 309 (H.L.) … The principles that emerge are:

   • the question of habitual residence is a question of fact to be decided based on all of the circumstances;

   • the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;

   • a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;

   • a child’s habitual residence is tied to that of the child’s custodian(s).

The habitual residence of the child’s custodians

1. In respect to the fourth principle set out in Korutowska-Wooff v. Wooff, being the fact that a child’s habitual residence is tied to that of their custodians, in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”), the High Court commented at 594 that:

   The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.

2. As the child in this case had just turned two years of age at the time of the hearing, in determining whether she was habitually resident in Australia on 19 December 2018, it is inevitably the case that the situation of the parties must also be considered.

The parties’ intentions

1. I will now consider the “settled intention” of the parties in respect to their place of residence.

2. In LK, the High Court made the following statement at 595 to 596:

   … when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.  [Emphasis added].

3. However, at 594, the High Court confirmed that the intention of the parties is not the end of the inquiry, when it said “intention is not to be given controlling weight” in deciding habitual residence. 

4. Consistent with that finding, in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”) at 81,308, the Full Court confirmed that the trial judge fell into error in having “predominated” parental intention over other, more pertinent, considerations.

An “appreciable period”

1. I will now consider whether the child can be said to have resided in Australia for an “appreciable period of time”.

2. Prior to 19 December 2018, the total time that the child spent in Australia was for the first four and a half months of her life and then 51 days between 8 August and 29 September 2018.

3. In Zotkiewicz at 85,765, the Full Court said:

   We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”.

   What amounts to an ‘appreciable period’ will differ from case to case …

4. In that respect, at 85,765, the Full Court noted the decision of Butler-Sloss LJ in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 CA (“Re F”) at 555, where his Lordship said:

   The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time.

5. However, it is also of note that, in Padwa at 81,314, the Full Court held that the period of time that a child spent in a country was “not determinative” of whether the child had become habitually resident in that country.

6. Further, in LK, the High Court made it clear that a child can lose habitual residence in one country before becoming habitually resident in another country, as follows:

   But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence. So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place…

7. As set out above, the mother carries the burden of establishing that the child was, as at 19 December 2018, habitually resident in Australia.  It is clear from the authorities that, in order to achieve that purpose, it is not sufficient for her to prove that, as at that date, the child ceased to be habitually resident in China.

Broad factual inquiry

1. While it is clear that the intentions of the parties and the length of time that the child has spent in Australia are important considerations in this matter, they are not determinative of whether there has been a change in her habitual residence.

2. To that effect, in LK at 599, the High Court cited, with approval, the statement of principle adumbrated by the New Zealand Court of Appeal in Punter v Secretary for Justice [2007] 1 NZLR 40 (“Punter”) that “a broad factual inquiry” was required to determine whether there had been a change in a child’s place of habitual residence, as follows:

   Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP [[2005] 3 NZLR 590] held that settled purpose (and with young child the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.  [Emphasis added].

3. In that regard, it is helpful to consider the facts of this case as against those set out by the High Court in LK.  

4. LK concerned children who had travelled with their mother from Israel to Australia.  The mother and the children travelled on return air tickets and the father remained in Israel.  The father agreed to the mother and the children travelling in the hope that, during the period that the mother and children would spend in Australia, the parties would be able to achieve a reconciliation of their relationship.  In the event of such a reconciliation, it was understood that the mother and the children would return to Israel.

5. The High Court found that, in acting on that intention, the mother had engaged in a course of conduct consistent with establishing Australia as the children’s place of habitual residence: at 595.  In terms of the conduct of the mother in LK in that regard, at 595, the High Court noted the following to be of relevance:

   … In Australia she soon sought and obtained Centrelink benefits, the two older children started school and the next oldest was enrolled at preschool, the older children joined a soccer club and took music lessons. Later, with the assistance of her parents and the local Jewish community, she rented and furnished a home for her to live with the children.

   All of these steps (except the last) were taken before the father asked, in July 2006, for the children to be returned to Israel. All of the steps identified are consistent with, indeed support, the view that by registering the children as Australian citizens and enrolling the older ones in school before she left Israel, the mother was then set upon a course from which she did not thereafter deviate: to move to Australia unless the father decided (contrary to the then state of affairs between them) to live with her and the children.

Consideration

1. At paragraph 16 of his Affidavit, the father acknowledged that, when the parties travelled to China in May 2017 with the child, it was their intention that they would eventually return to Australia with the child, in order to reside here.  At paragraph 23 of his Affidavit, the father confirms that this remained his intention upon the parties’ separation.  I accept that this remained the father’s intention as at the date of filing his Affidavit, being 19 November 2018.

2. I accept that that remains the intention of the mother.  However, the mother’s evidence casts doubt as to whether that remains the intention of the father.  At paragraph 30 of her Affidavit filed on 29 November 2018, the mother states:

   I am concerned that the [father] is intending to divest himself of any interest in property in Australia so that there will be no reason to return to Australia and prevent the Australian authorities from taking steps to locate [the child].

3. However, even if I accept that it remains the intention of both parties for the child to live in Australia as and from the commencement of the first school term in 2022, the question to be determined in these proceedings is whether they individually or jointly acted on that intention. In that respect it cannot be said that, as at 19 December 2018, they had “assimilated” into life in Australia in such a manner as to transfer the child’s habitual residence to this country.

4. In that regard, the mother has not acted upon her stated intention to relocate to Australia and her evidence in relation to her current visa status is as follows:

   I currently hold a visitor visa which allows me to stay in Australia for a maximum of three months as and from the date on which I arrive in that country.  The Visa is valid for a three-year period and multiple entries.

5. Accordingly, if it is determined that the child should live with the mother, the child would not be able to reside in Australia unless and until the mother is successful in obtaining a change in her visa status.  While the mother expressed some optimism in respect to that issue, it nonetheless remains speculative as to whether it will occur.

6. During the course of the hearing, Counsel for the mother contended that, while it was “slight”, there is some evidence that the conduct of the father “has integrated, to a degree, the child in this country”.  In that respect, Counsel for the mother submitted that:

   The father has made arrangements to integrate the child in Australia because he has come here. He has provided a residential address for her. She’s living here. Residential means residing. The child is only two – was not even two, at that stage, so he has made no arrangements for child care in this country. ... No evidence that he has made arrangements for the child to go to a day care or what you might a preschool or some sort of other institutionalised type of place which the child might attend, neither in this country or anywhere else but what we do know is that he has engaged Australian nannies to look after the child.

7. Counsel for the mother made reference to the father’s purchase of the Suburb C property in her submissions regarding the habitual residence of the child in Australia.  I accept that that property was sold prior to 19 December 2018.  Counsel for the mother further submitted that:

   … [the father] continues to own the [Suburb N property], which he says is one of the properties he owns in Australia. But at no time has the father said, “I’m not going to integrate her in Australia. I’m not going to educate” - - -

8. Those matters referred to by Counsel for the mother are not such that I can be satisfied, on the balance of probabilities, that the child was habitually resident in Australia as at 19 December 2018.  I make that finding for the following reasons:

   a)The child cannot be said to have spent an “appreciable” amount of time in Australia since her birth.  While Re F makes clear that a month could be considered an “appreciable” amount of time, I do not find, in the circumstances of this case, that the fact that the child has spent 51 days in Australia since May 2017 sufficient to make a finding that she has resided here for an appreciable period of time;

   b)There is no evidence that, as at 19 December 2018, either party had become economically integrated into Australian life.  The ownership of the Suburb N property by the father, does not, in itself, establish a state of habitual residence.  In terms of their employment as at 19 December 2018, the father continued to be involved in business activities in a number of countries, while the mother was unemployed.  She had been employed in China in the period between July and September 2018.  Moreover, as at that date, the mother was, and continues to be, unable to obtain employment in Australia as result of her visa status;

   c)There is no evidence before the Court regarding the child’s living arrangements as at 19 December 2018.  The fact that it is likely that the father and the child were domiciled at the Suburb N property between 8 August and 29 September 2018 does not establish that the child was habitually resident in Australia as at 19 December 2018.  As noted by the High Court in LK, consideration must be had, not only to where a person resides, but also “whether residence at that place can be described as habitual”;

   d)Other than to the extent that the father engaged the services of nannies to assist in the care of the child, including during the period when the child was in Australia, there is no evidence before the Court regarding the child’s preschool or daycare arrangements as at 19 December 2018.  The fact that the child has been enrolled to commence school at D School in 2022 is an indication of the parties’ future intentions for the child to become integrated into life in Australia, but it does not establish that such integration had occurred as at 19 December 2018; and

   e)Other than to the extent that the mother states that, during the period that the father and child were in Australia, the Suburb N property was occupied by the father’s niece, her husband and their child, there is no evidence that the child had become socially integrated into Australian life as at 19 December 2018 as a result of association with family, development of a circle of friends or engagement in any other form of social, sporting, religious or cultural activities.

9. Accordingly, I am unable to find that, as at 19 December 2018, the child was habitually resident in Australia.  Therefore, I decline to make the orders as sought by the mother on the basis that there is no jurisdiction for doing so and dismiss the orders pressed by her at the hearing, being orders 1, 6, 7, 8 and 9 of the final orders and orders 1 and 2 of the interim orders contained in her Amended Initiating Application filed on 29 November 2018.

10. For completeness, for the reasons set out above, I also find that it cannot be said that the child had become assimilated into Australian life as at any of the other potentially relevant dates canvassed as being the date upon which the status of the child’s habitual residence needed to be determined.  As stated, those other potentially relevant dates were the date that the father unilaterally removed the child from the mother’s care, being 22 June 2018, the date that the child was removed from Australia, being 29 September 2017 and the date that the mother commenced these proceedings, being 22 October 2018.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 11 January 2019.

Associate: 

Date:              11 January 2019