Zotkiewicz & Commissioner of Police (No 2)
[2011] FamCAFC 147
•8 July 2011
FAMILY COURT OF AUSTRALIA
| ZOTKIEWICZ & COMMISSIONER OF POLICE (NO. 2) | [2011] FamCAFC 147 |
| FAMILY LAW - APPEAL – CHILD ABDUCTION – Appeal from a decision of a Family Court judge ordering that the child be returned to Poland in the company of his father – Where the only issue to be determined by the trial Judge was whether the child was “habitually resident” in Poland prior to his removal – Whether the trial Judge erred in failing to consider or give sufficient weight to portions of the mother’s evidence – Discussion of the meaning of “habitual residence” – Discussion of the way in which Australian courts are required to approach the resolution of factual disputes in Hague Convention matters – Although there were significant factual issues confronting the trial Judge, his Honour did not err in failing to require the discrepancies to be resolved by cross-examination – However, his Honour erred in his consideration of the parties’ evidence and the weight he placed on the evidence of the mother – The State Central Authority failed to discharge the burden of proving on the balance of probabilities that the child was habitually resident in Poland – The application of the State Central Authority for the child’s return is dismissed – Appeal allowed – Costs issues reserved FAMILY LAW - LEGISLATION – Family Law Act 1975 (Cth) – Appeals to proceed by way of rehearing – Application of s 94(1) and s 93(A)(2) to Hague Convention matters – Discussion of Fox v Percy (2003) 214 CLR 118 – Where the trial Judge arrived at his finding on habitual residence by reference to untested affidavit evidence – The usual “advantages” of a trial judge are not present – Matter re-determined by appellate court |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 Federal Proceedings (Costs) Act 1981 (Cth) Hague Convention on the Civil Aspects of International Child Abduction |
| Allesch v Maunz (2000) FLC 93-033 De L v Director General & NSW, Department of Community of Services & Anor (1996) FLC 92-706 Director-General, Department of Communities (Child Safety) Services and Rolfston [2010] FamCAFC 149 Director-General of the Department of Community Services & Timms (aka Black) (2008) FLC 93-376 DW and Director-General Department of Child Safety (2006) FLC 93-255 Feder v Evans-Feder (1995) 63 F. 3d 217 Fox v Percy (2003) 214 CLR 118 Gazi and Gazi (1993) FLC 92-341 Harris & Harris (2010) FLC 93-454 In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 LK v Director-General, Department of Community Services (2009) 237 CLR 582 Mozes v Mozes (2001) 239 F. 3d 1067 MW v Director General, Department of Community Services (2008) 82 ALJR 629 Panayotides v Panayotides (1996) 21 Fam LR 446 Paterson v Casse (1995) FLC 92-629 Punter v Secretary for Justice [2007] 1 NZLR 40 Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 Re M (Minors) [1993] 1 FLR 495 Scott & Scott (1994) FLC 92-457 Simpson and Brockmann (2010) 43 Fam LR 32 Zafiropoulos & State Central Authority (2006) FLC 93-264 Zenel v Haddow [1993] S.L.T. 975 |
| APPELLANT: | Ms Zotkiewicz |
| RESPONDENT: | Karl Joseph O'Callaghan, Commissioner of Police |
| FILE NUMBER: | PTW | 1930 | of | 2010 |
| APPEAL NUMBER: | WA | 7 | of | 2011 |
| DATE DELIVERED: | 8 July 2011 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | May, Thackray and Moncrieff JJ |
| HEARING DATE: | 13 April 2011 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 27 January 2011 |
| LOWER COURT MNC: | [2011] FCWA 5 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Thatcher |
| SOLICITOR FOR THE RESPONDENT: | State Solicitor's Office |
Orders
The application of the appellant to introduce further evidence filed 30 March 2011 be dismissed.
The appeal be allowed.
The orders made by the Honourable Justice Crooks on 4 February 2011 be set aside.
The Form 2 Application of the respondent filed 9 July 2010 be dismissed.
The costs of the appeal be reserved.
Within twenty-one (21) days the appellant file and serve submissions in support of any application for costs.
Within twenty-one (21) days thereafter the respondent file and serve submissions in response to the submissions on behalf of the appellant in relation to costs.
The appellant have leave to apply for a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), such leave to be exercised within 28 days of the making of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Zotkiewicz & Commissioner of Police (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 7 of 2011
File Number: PTW 1930 of 2010
| Ms Zotkiewicz |
Appellant
And
| Karl Joseph O'Callaghan, Commissioner of Police |
Respondent
REASONS FOR JUDGMENT
On 4 February 2011, Crooks J made an order that N Zotkiewicz, the child, aged 6, be returned to Poland in the company of his father.
The order was made on the application of the Commissioner of Police as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Regulations give effect to Australia’s obligations as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
This appeal challenges the finding that the child was habitually resident in Poland, where he had spent five months, before his mother brought him to back to Australia, where he had lived for the previous three years. If the challenge against this finding succeeds, the order must be set aside.
Background
His Honour included the following “Short outline” in his reasons for decision:
12 The father was born in Poland and is aged 51 years. The mother was born in Belarus and is aged 36 years. In 1983 the father acquired Australian citizenship. The parties began living together in Poland in about 1999 and married in that country [in] 2000.
13[The child] was born in Poland [in] 2004 and was later registered as an Australian Citizen by descent. The mother, father and [the child] continued to live in Poland until 6 December 2006 when they moved to Perth.
14The mother was granted Australian citizenship in September 2009.
15The mother and father remained living in Perth with [the child] until 24 October 2009 when they left Perth and travelled to Poland.
16[In] February 2010 the father filed for divorce in Poland, whilst the parties continued to live together. This remained the position until 31 March 2010 when the mother left Poland with [the child] without the father’s knowledge or consent and returned to Australia on an emergency passport.
17 On 13 April 2010 the mother filed an Application in the Family Court of Western Australia and on 21 April 2010 an order was made for [the child] to live with the mother until further order.
18 On 18 June 2010 the father made a Request for Return under the Hague Convention to the Australian Central Authority.
19 On 2 August 2010 orders were made by a Polish Court granting the parties a divorce and giving the father parental responsibility for [the child].
20 [The child] has lived with the mother in Australia since 31 March 2010.
The only additional fact important to record at this point is that the mother contacted the Australian Embassy in Warsaw on 14 December 2009 seeking an emergency passport which ultimately allowed her to return with the child to Australia. The father had retained the child’s passport.
The reasons for decision
Crooks J commenced his reasons by setting out relevant portions of the Regulations, including reg 16(1A) which requires the court, before making a return order, to be satisfied that the subject child was habitually resident in a Convention country immediately before removal to Australia.
His Honour then summarised the mother’s case as follows:
10 …
(a)[the child]’s habitual place of residence was Australia at the date of removal from Poland on 31 March 2010;
(b)the mother and the father (or at least the mother) did not have a settled intention (or settled purpose) to live in Poland for more than two years, and intended to return to Australia with [the child] to live; and
(c)in any event, the parties’ relationship in Poland “broke down so quickly that no shared intention to live in Poland for any appreciable period for joint purposes arose”.
The Judge next recorded the submission of the State Central Authority that when the family travelled to Poland in October 2009 they intended to live there “permanently or at least for an indefinite period”, and that the child was therefore habitually resident in Poland at the date of his removal.
Having then provided the “Short outline” which we have reproduced, his Honour turned to discuss the law relating to habitual residence. He observed that “Regulation 16(1A)(b) provides that a child’s removal to, or retention in, Australia is wrongful if the child “habitually resided” in a convention country immediately before the child’s removal to, or retention in, Australia”.
There are, of course, a number of other matters that must be established before a removal can be found to be “wrongful” within the meaning of the Regulations; however, his Honour properly recognised that a return order could not be made without a finding that the child was habitually resident in the country from which he had been removed.
His Honour next turned to authorities on the meaning of “habitual residence”. He first referred to LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) which is the most recent Convention case in which the High Court has discussed “habitual residence”. He quoted from the decision where the High Court said at 592:
23.… First, application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.
His Honour then referred to later paragraphs where the High Court said at 594:
28. Although intention is a necessary element in deciding domicile of choice, and “habitual residence” is chosen as a connecting factor in preference to domicile, examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29. First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
32. … because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.
33. Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place.
34. Thirdly, 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.
Crooks J then recorded that the High Court had agreed in LK with the plurality of the Court of Appeal of New Zealand in Punter v Secretary for Justice [2007] 1 NZLR 40 (“Punter”) that any inquiry into habitual residence is a “broad factual enquiry”. He further recorded that the High Court had cited the following passage from Punter with approval (at 62 - 63 [88]):
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 (CA)] held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state …
His Honour next observed that Lord Brandon of Oakbrook had held in In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578 (“In re J”) that the term “habitual residence” was “not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains” and that “the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case”.
Crooks J then noted that “the parties” had each relied on their own affidavits and those of various witnesses, whose names and connections with the parents he recorded. Importantly, he noted that no oral evidence had been given.
Under a heading, “Discussion and conclusion”, his Honour said there was no dispute that the child had been habitually resident in Australia prior to 24 October 2009, having lived here since December 2006. He went on to note, however, that there was “much conflict” in the evidence concerning the parents’ intentions when they left Australia to travel to Poland. The extent of the controversy, we regard as of some significance in this case.
His Honour recorded the father’s assertion that “the parents returned to live in Poland permanently in October 2009”, and noted that this assertion was supported by the evidence of three people who had sworn affidavits in support of the father’s case (being his previous wife, his mother and his friend).
His Honour continued:
31The mother asserts she did not agree to move permanently to Poland. Her evidence was that she initially agreed to go to Poland for a four month period after the father suggested he needed to go back to Poland for financial reasons. The mother further says that although she did not wish to leave Western Australia when the father first raised the matter with her, she wanted the family to stay together and thought “a temporary move to Poland would … enable us to work on our marriage”. According to the mother’s evidence following further discussions with the father she agreed to travel to Poland “for up to two years”.
Crooks J next recorded that three other witnesses (including the child’s teacher) had given evidence of having had discussions with the mother prior to her departure for Poland, in which she said the trip was “only temporary”. His Honour also referred to the evidence of another teacher who recalled having had a discussion with the father around Fathers Day 2009, in which the father had said the family was going away for a “short time” for reasons connected with his business. His Honour noted that the father had admitted having this discussion, but had denied making this statement.
His Honour next referred to the affidavit sworn by the school Principal, who recalled the mother saying the family “wanted to return to Perth as soon as they could and that she hoped it would be within two or three years”. The Principal did not recall the father mentioning any particular return date, but did recall him indicating there were better business opportunities in Poland during the 2008 downturn. His Honour recorded that the Principal was not clear whether the father’s comment that they would be “back in Perth at some stage due to his daughter living here” was a reference to visits or returning to live. His Honour finally recorded that the mother had not sought to dispute the Principal’s evidence that she had said she hoped their return to Perth “would be within two or three years”.
His Honour then referred to evidence relied upon by the State Central Authority, and the submissions made by counsel for the mother about that evidence, in the following terms:
34The following evidence was relied upon by the Central Authority to demonstrate that when the parents and [the child] left for Poland in October 2009, they retained no connection with Australia, other than the fact that the father’s daughter would continue to live in Perth and presumably that each parent retained Australian Citizenship.
(a) the parents did not retain any home in Perth after they left for Poland. This was not disputed by the mother;
(b) although the mother gives evidence at paragraph 26 of her affidavit filed on 26 August 2010 that the father suggested the move to Poland would enable them to make enough money to build a house on a block of land at [the suburb G] the father put a deposit on in 2008, she did not seek to challenge the father’s evidence that he sought to cancel the land purchase in late 2008 and received a refund of the deposit and stamp duty about September 2009;
(c) before travelling to Poland, the father had either disposed of or arranged to move the family’s furniture and belongings to Poland;
(d) one way tickets for the parents and [the child] were purchased;
(e)the individual departure cards for the father, mother and [the child] were each marked “Australian resident departing permanently” with Poland shown as the country of future residence on each of the cards. Whilst it was not in dispute that the father filled out each of the departure cards and the parties’ signatures were omitted from the copies produced by the Department, the mother acknowledged she may have signed the departure card completed for her, which does appear more likely than not. The father denied any suggestion that the mother may not have read and clearly understood what was marked on the departure card prior to signing; and
(f) [The child] did not have a retained registration at any school in Perth.
35 [Counsel for the mother] submitted that the abovementioned facts were also not inconsistent with the mother’s stated intention that the move to Poland was to be only temporary. He argued that:
(a) it was not surprising one-way tickets were purchased, given there was no precise date planned for the parents and [the child] to return to Australia;
(b) it was the father who made the arrangements for the transportation of the furniture and the mother’s evidence was that had she known of the costs involved in moving the goods to Poland, she was unlikely to have agreed to ship the items, preferring to have them stored in Perth; and
(c) given the mother’s case that the parties would be absent from Australia for up to two years or perhaps three years on the basis of [the School Principal’s] evidence, it was not surprising the father did not seek to extend the lease on the home they rented in Perth prior to October 2009.
Crooks J went on to discuss the evidence and submissions associated with the fact the parents had not left Australia until after the mother had obtained Australian citizenship in September 2009. In doing so, he said:
36 [Counsel for the mother] also referred to the parents having waited until the mother was granted Australian citizenship in September 2009 before leaving Australia and posed the question “why would she do that if she was intending to move permanently?”. [The father’s friend], perhaps provides the explanation for this at paragraph 2 of his affidavit filed 17 September 2010 where he says:
“2. Both [the father] and [the mother] told me over a period of time that they were going back to Poland for good due to financial reasons and family closeness. [The mother] told me she missed her mother and family. [The mother] became an Australian before they left and she told me you never know what happens in the future and I am proud to get Australian citizenship…”
37 The mother did not suggest that [the father’s friend’s] evidence was not an accurate account of what was discussed with him in relation to the granting of her Australian citizenship, although the timing of those discussions was not apparent.
We pause to note that it is unclear at what stage his Honour considered the mother ought to have indicated she did not accept the evidence of the friend of the father, given that the mother was not required for cross-examination and her own evidence (which was corroborated) was that she had told other witnesses that her absence from Australia was only temporary.
His Honour concluded his assessment of the parents’ positions as at the time of their departure from Australia in the following terms:
38It is clear that when the parties left Australia, they left nothing behind in terms of their furniture and belongings and had no home or car waiting for them to come back to. I accept that the mother and father retained no significant connections with Australia when they travelled to Poland with [the child], other than their Australian Citizenship and the fact that the father’s adult daughter would continue to live in Australia and visit her father in Poland.
Crooks J next found that the fact that the parents “were not at one in their stated intentions regarding their move to Poland” was “not necessarily a conclusive or determinative factor”. For authority for that proposition, his Honour referred to the following citation from the decision of this Court in Director-General, Department of Communities (Child Safety) Services and Rolfston [2010] FamCAFC 149:
59.… However, as is apparent from the High Court decision in LK v Director-General, Department of Community Services in considering a child’s place of habitual residence, the enquiry is not necessarily whether there is a settled and unequivocal intention on the part of the party who is looking to establish no change, as is the case with acquiescence, but rather there are a whole range of relevant matters to be considered of which the intentions of the parties are but one. And further, if it is necessary to examine the intentions of the parties, then “the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged” …
Crooks J noted the submission of counsel for the mother, that even if he accepted that the child had ceased to be habitually resident in Australia upon departure in October 2009, the Court ought not find he had become habitually resident in Poland by March 2010. He noted that in support of this submission, counsel for the mother had referred to Inre J, where Lord Brandon of Oakbrook said (at 578):
The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J.’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.
Crooks J correctly observed that if it was not established that the child was habitually resident in Poland at the time of his removal, then the application must fail.
The Judge next noted the submission of counsel for the mother that the marital relationship was an “important factor [which] had a strong bearing on why the mother agreed to go to Poland with the father”. His Honour continued:
43… The mother says her relationship with the father “gradually deteriorated” when the parties lived in Perth, which was largely due to the father’s excessive drinking and aggressive behaviour towards her. Whilst the father denies the mother’s allegations and I accept there was very little, if any, independent evidence that the father had behaved towards the mother as she asserted, the evidence does indicate that before the parents and [the child] travelled to Poland, there had been difficulties in the parents’ relationship, at least from time to time.
His Honour then went on to discuss the reliance placed by counsel for the mother on the decision of this Court in DW and Director-General Department of Child Safety (2006) FLC 93-255 (“DW”), which counsel had submitted had strong factual similarities to the present case. His Honour carefully considered the facts in DW, but found the two cases were “very different”, and that the marital problems of the parents in the present matter did not have the significance they were found to have in DW.
In the course of distinguishing the two cases, his Honour referred to the fact that the mother had “surreptitiously” removed the child from Poland after convincing the Australian Embassy it was appropriate to issue the child with an emergency passport. His Honour also observed that the child in DW had been born in Australia after the parents had separated, whereas in the present case the child had been born in Poland and lived in Poland from the time of his birth until December 2006 when the family came to Australia.
His Honour then recorded that the mother “first made contact with the Australian Embassy on 14 December 2009”. The reasons for her doing so were not noted by his Honour. He did, however, record that the mother’s application for an emergency passport for the child was lodged on 5 March 2010; that the passport was approved on 17 March 2010; and was issued on 30 March 2010, the day before the mother left Poland with the child.
The Judge noted that counsel for the mother had referred to this evidence concerning the passport application as part of his submission “as to the unhappy state of the parties’ marriage”, and how the relationship “fell apart quickly” in Poland. His Honour made no comment about that submission.
His Honour next recorded that both counsel had relied upon Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 (“Re B”), where Waite J had set out these three principles emerging from the authorities concerning habitual residence (at 995):
1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither party can change it without the express or tacit consent of the other or order of the court.
2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether it is of short or long duration.
All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
3. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention.
His Honour then recorded the submission of counsel for the mother that “the circumstances of this case do not establish any assumption of habitual residence in Poland” which counsel had argued required “an appreciable period of time and a settled intention”. In dealing with that proposition his Honour referred again to the judgment in Re B, where Waite J said (at 995):
The House of Lords in Re J, sub nom C v S [[1990] 2 FLR 442] refrained, no doubt advisedly, from giving any indication as to what an ‘appreciable period’ would be. Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F [[1992] 1 FLR 548] the Court of Appeal approved a judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.
His Honour said that the authorities made clear that the question of whether or not the child had acquired habitual residence in Poland “is not to be answered simply by a determination of whether the duration of his stay in Poland was long or short”; that the appropriate approach was that laid down by the High Court in LK; and he therefore had to “look at all of the relevant factors of the case”.
His Honour set out the basis for his decision that the child should be returned to Poland in paragraphs 55 to 62 of his reasons. These are recited in full below, given their obvious importance:
55 I have earlier referred to the circumstances existing at the time of the parents’ departure to Poland in October 2009. I now wish to deal with other relevant factors, including the strength of the parents’ ties to Poland and the degree of [the child’s] assimilation into Polish life which were referred by the Court of Appeal in Punter’s case to be considered as part of the “broad factual enquiry” into whether [the child] was habitually resident in Poland immediately prior to the mother removing him to Australia.
56 Although the parents lived in Australia between December 2006 and October 2009, they clearly had strong connections with Poland. As earlier noted, they married in Poland, [the child] was born in Poland and the mother, father and [the child] lived in Poland until December 2006. The father’s extended family, apart from his adult daughter, live in Poland and the father had a home and business in Poland. I accept the submission of [counsel for the State Central Authority] that following their arrival in Poland in October 2009, the parents and [the child] significantly integrated into Polish life and their stay had none of the hallmarks of being simply a transitory visit to Poland. In this regard:
(a) as earlier noted, there was no dispute the parents lived together in Poland with [the child] for the entire period of their stay in the home the father renovated;
(b) the father had his business in Poland;
(c) [the child] started kindergarten at [kindergarten F], Poland, and attended classes there from 1 November 2009 until 30 March 2010 as evidenced by the certificate of kindergarten dated 18 May 2010 which is attached to the father’s Application. It was also not in dispute that the mother and father signed on 31 March 2010 the necessary form seeking [the child’s] admission to that kindergarten for the 2010, 2011 school year. Whilst the mother signed this document, it should be noted that by then she had obtained an emergency passport for [the child] and presumably had made her plans to leave Poland;
(d) [the child] also commenced private tuition in the Polish language which is supported by the written opinion of [the child’s] pre-school teacher at [kindergarten F] dated 19 May 2010 attached to the Hague Application. That opinion also refers to [the child’s] parents taking part in [the child’s] “kindergarten life on many occasions”;
(e) the mother and [the child] were registered for social security and health insurance benefits in Poland on 13 January 2010;
(f) it was not disputed that the mother applied for a driver’s license in Poland; and
(g) following his arrival in Poland, [the child] spent frequent periods with his maternal grandmother and other family members as detailed in the evidence of [the child’s paternal grandmother].
57 After carefully considering all of the evidence, I am satisfied that [the child] lost his habitual residence in Australia when the parties travelled to Poland in October 2009. I accept that the outward appearance, particularly given the evidence set out at paragraph 34, was that the parents and [the child] had moved to Poland, at least for a significant period. The mother and father, I accept had essentially given up their connections with Australia, other than the fact that [the father’s daughter] would continue to live here and the parents retained their Australian Citizenship. The fact that the parties may have had different or ambiguous intentions concerning the length of their stay in Poland “is not, in my view, to be given controlling weight” to adopt the words of the High Court KL (supra) at 28.
58 The parents, in my view, agreed to take up residence in Poland voluntarily and for a settled purpose of the father being able to take up work opportunities in Poland where the father had a home which had been renovated for family needs, had business interests and members of his family lived.
59 Following the parents’ and [the child’s] move to Poland, I am satisfied they significantly integrated into Polish life including their living arrangements and [the child’s] schooling arrangements, particularly taking into account the matters referred to in paragraph 56 of these Reasons.
60 The mother, father and [the child] continued to live together in Poland in the family home for approximately five months following their arrival, which I am satisfied in the circumstances represented an appreciable period of time.
61 In my view, the evidence supports the conclusion that [the child] was habitually resident in Poland immediately before his removal to Australia on 31 March 2009 and his removal was wrongful.
62 The fact that the mother started making inquiries about leaving Poland some four to six weeks after her arrival, unbeknown to the father, did not prevent [the child] from acquiring habitual residence in Poland.
His Honour concluded his reasons by finding that the father had “rights of custody” at the time of the child’s removal from Poland, and by noting that the mother had not pursued potential defences to the application which she had foreshadowed. No issue relating to these matters is raised on this appeal.
The Grounds of Appeal
The amended Grounds of Appeal assert that the Judge failed to consider or give weight, or sufficient weight, to portions of the mother’s evidence. It is said that this failure led to his Honour erroneously finding that the child was habitually resident in Poland, and hence in concluding that the child’s removal from that country was “wrongful” within the meaning of the Regulations.
The amended Grounds of Appeal were as follows (the underlining is in the original):
1.The Learned Trial Judge failed to consider, or to give any, or any sufficient, weight, to the evidence of the Appellant that:
a)The relationship between the Husband and Appellant was broken prior to their departure from Perth to Poland in October 2009;
a1)In September 2009, the Appellant received legal advice from Northern Suburbs Community Legal Centre in Mirrabooka, which assured her that “of course you can [return to Australia with the child any time] because you are Australian citizens”. When giving this advice to Appellant, the Senior Solicitor did not mention Hague regulations;
a2)When agreeing to go to Poland, the intentions of the parties were clearly different;
a3)Appellant has strong connections to Australia, she did not wish to go to Poland, but was prepared to sacrifice her wishes in an attempt to repair the broken relationship. She felt reassured by the legal advice that she had received, that if the [sic] things did not work out for them in Poland, she would be free to return to Australia with the child as long as they both had Australian passports;
a4)The Husband misled the Appellant, [the child’s] school teachers, and Appellant’s friends, about his true intentions of going to Poland;
b)In Poland, the Husband possessed the passport of the child [the child] to the exclusion of the Appellant;
c)The Appellant first approached the Australian Embassy in Poland on 14 December 2009 to seek to obtain a passport for [the child] in order to leave Poland and complained of being mistreated and abused by the husband;
d)The Appellant had to wait to obtain a new passport for [the child] and was thus obliged to remain in Poland until the passport was granted despite the breakdown of the relationship and her ongoing wish to return to Australia with [the child];
e)The Husband filed an Application for Divorce on 26 February 2010.
2.As a result of the matters referred to in paragraph 1 the Learned Trial Judge erred in finding that:
a) The parents and the child were significantly integrated into Polish life, particularly taking into account the matters referred to in paragraphs 34, 38, 56, 58, 59, 60 of his Reasons for Judgement;
b)The parents and [the child] continued to live together in Poland in the Father’s home for approximately 5 months following their arrival, which represented an appreciable period of time;
c)The fact that Appellant started making inquiries about leaving Poland some four to six weeks after her arrival, unbeknown to the father, did not prevent [the child] from acquiring habitual residence in Poland immediately prior to his removal to Australia by March 2010;
d)The child’s removal to Australia by the Appellant in March 2010 was wrongful.
3.Taking into account all of the circumstances of the parents’ relationship from the time of their arrival in Poland, the Learned Trial Judge should have found that:
a)As a result of the breakdown of their relationship the parents had no settled intention, or even ambiguous intentions, about their arrangements in Poland from shortly after their arrival in Poland;
b)The Appellant remained in Poland, and in the home of the husband, after the breakdown of the relationship contrary to her wish to return to Australia with [the child] as she had no realistic alternative until an emergency passport was issued for [the child];
b1)By withholding [the child’s] Australian passport, Citizenship certificate, and Birth certificate, and therefore preventing the Appellant from returning back to Australia with [the child] as soon as the Appellant realised what the Husband’s true intentions were, the Husband forced the Appellant and the child into a long and agonising wait for emergency travel document to be issued, and later manipulated these facts and used the “length of stay” argument at the subsequent hearing in order to establish “habitual residence” in Poland by deceit;
c)Any integration into Polish life by [the child] within the period of 5 months of his stay there must be understood in the context of the disintegration of the parents’ relationship and the change in any prior intention of the Appellant to stay in Poland for a period of time, and the early continuing efforts of the Appellant to leave Poland with [the child];
d)In the circumstances [the child] was not habitually resident in Poland at the time of his removal, which removal was not wrongful.
The mother was self represented at the time these amended Grounds of Appeal were drawn. She was also required to argue her appeal without the benefit of counsel, the State Central Authority having persuaded us that the hearing should not be adjourned to permit efforts to be made to ensure the mother and/or the child had the benefit of counsel.
The mother’s evidence
This appeal largely turns on the mother’s assertion that her evidence was not considered, or was given no weight, or insufficient weight. It is asserted that had her evidence been accepted, or at least not overlooked, the Court would not have been persuaded that the child was habitually resident in Poland.
In order to understand the mother’s complaints, it is necessary to set out her evidence in some detail. Had it been accepted, when read together with the information obtained from the Australian Embassy, this is the picture that would have emerged:
· between 2006 and 2009 the father would visit Poland for up to three to four weeks at a time on three or four occasions a year;
· during the time the father was away he left the mother and child without money, telling the mother that if she needed money she would have to ask his former wife or his adult daughter;
· the marital relationship gradually deteriorated due to the father’s “excessive drinking and controlling behaviour”;
· on occasions when the father was drunk he would say things to the mother such as “pick up your bastard and get out of here you stupid bitch”, and “I will divorce you and you will have no food, no money and no place to live”;
· in order to obtain refuge the mother and child would sometimes sleep at a neighbour’s house; on one occasion, in August 2007, the mother made a complaint to the police;
· in about August 2009 the mother sought advice about a divorce from a Community Legal Centre;
· after informing the father she had taken advice about a divorce, the father’s attitude changed, in that he became more loving and considerate; the father also suggested that the family travel to Poland for his 50th birthday, which fell in October 2009;
· the father began to complain about a lack of money and, in September 2009, he suggested the family move to Poland for about four months. The father said they needed to make some money and that it would be easier to do that in Poland where his business was located;
· the father suggested to the mother that they quickly pack their belongings in a container, which would be stored in Perth while they spent the four months in Poland;
· the father continued to look for cheaper rental properties to occupy upon the family’s return to Australia on the basis that, if a “good deal” was available, they would take the premises and move into them upon their return;
· the mother heard the father on the telephone discussing arrangements for the storage of their furniture and effects and he asked her to enquire of their friends as to where storage was available;
· the mother did not wish to leave Australia for four months, however she wanted the family to stay together, so agreed to accompany the husband, believing that a temporary move to Poland would enable them to “work on [their] marriage”;
· within a short period of time after the initial suggestion of spending four months in Poland, the father suggested it would be “smarter to move to Poland for up to two years”;
· the father’s stated reason for proposing a move of “up to two years” was that this would enable the parents to accumulate funds to build a house on the land in [the suburb G] they had acquired, and that if he was occupied and working in Poland, “he would drink less and be happier”, which he suggested was the way to repair their marriage;
· although the father had spoken of building on the land in [the suburb G], he had also sought a refund of monies paid for that land as the subdivision was contaminated (the mother’s evidence about this was corroborated by the evidence of another witness);
· the mother initially refused to go to Poland for the suggested period of two years as she was concerned the child would lose his English language, however, the father produced material about an American kindergarten, and reassured her that the child’s language skills would be maintained with private tutoring;
· the mother felt comforted by these assurances from the father and agreed to move temporarily to Poland;
· despite the initial discussions about storing their furniture in Perth, the father then suggested it would be better to sell some of the furniture and take the remainder to Poland where they might obtain a better sale price, especially for the Australian made furniture; the mother was unaware of the cost of transporting the furniture;
· the mother’s next door neighbour and close friend pleaded with her not to go to Poland as she feared she would not come back, but the mother assured her the move was only temporary;
· being anxious to ensure that she could return to Australia “no matter what happened in Poland”, the mother sought further legal advice and was assured by the Community Legal Centre that she and the child could return to Australia;
· the mother discussed the move to Poland with two teachers at the child’s school, and with other mothers, and advised them that the move to Poland was “only temporary for up to two years”;
· prior to her departure from Australia, the mother made enquiries of the Principal about the re-enrolment of the child at the school upon the family’s return; the mother was informed a place could not be kept, however the Principal did not see a problem with re-enrolment;
· on 24 October 2009 the father, mother and child left for Poland; the father retained physical control of the mother’s and the child’s passport and travel documents;
· the mother accepted she may have signed a departure card that had been completed by the father, on which the box indicating permanent departure had been ticked, (although we observe that if the card had been ticked for a temporary departure, the duration of the temporary absence needed to be specified);
· upon the family’s arrival in Poland, the child was enrolled at [kindergarten F] and initially did attend private English classes, although these were cancelled by the father within a couple of weeks of their arrival in Poland;
· about one week after arrival in Poland the mother wanted to obtain a local driver’s licence and asked the father for her travel documents. The father presented her with her documents, however he kept the child’s passport, and did not respond to the mother when she asked why he had kept it;
· the father’s attitude towards the mother changed soon after the arrival in Poland, with him becoming increasingly critical of her parenting and being verbally and physically aggressive towards her, particularly when affected by alcohol; on five or six occasions the father attempted to hit the mother and on one occasion he slammed her hand in a door; some incidents were witnessed by the child;
· on occasions the father threatened to kill the mother and would refer to her as “a stupid bitch”, making comments such as “this is not Australia anymore…there is nobody can help you…you have no money…you have no place to live…you are just dead…your sick friend [the mother’s neighbour in Perth] is far away now”;
· the father became increasingly reliant on alcohol; on one occasion (following an incident in which the child became distressed and asked the father when they were getting tickets to go back to Australia) the father threatened the mother, and when she said she was going to call the police, the father responded by saying, “do that and they’ll find two dead bodies”;
· the child was unhappy in Poland and was asking strangers in the street how to get back to Australia;
· the father told the child he had “contacts” and was going to have the mother locked up in the “crazy house”;
· the father refused to make sufficient food available for the family, resulting in the mother eating very little;
· on 14 December 2009 the mother telephoned the Australian Embassy in Warsaw, advising that she was being mistreated and abused by her husband; she said she was calling from a telephone booth and was not able to talk because she had left her son at home; she was given an email address at which to contact the embassy;
· on 15 December 2009 the mother sent five emails to the embassy; she advised embassy officials that her husband was an alcoholic who had been abusing and mistreating their son; that the father often threatened to kill her and the son; she was depressed and terrified and very concerned about her own and her son’s safety; she also advised that she was not employed and was financially dependent on the father; she said she would like to return to Australia with her son but that the father had hidden the boy’s passport; she enquired whether the embassy could issue a new passport for her son; she advised she would not be able to attend the mandatory passport interview as her husband would not allow her to travel the 100 kilometres to the embassy; she was informed that the embassy would send her information on how to lodge an application for a passport without the father’s consent; she was advised she would have to lodge the application in person and that the father may be contacted and informed when the application was lodged; the mother asked the embassy not to send any correspondence in the normal mail;
· in January and February 2010 there were a number of communications between the mother and the embassy (and between the mother’s friend and neighbour in Australia and the embassy) concerning progress with her application for a passport, during which the mother continued to make complaints about threats made by the father;
· “about a couple of weeks before New Year 2010”, the father’s mother said to the mother “he’s going to divorce you”;
· at the beginning of January 2010 the father told the mother that he had spoken with a lawyer and that he wanted a divorce; the father told the mother that “after the divorce you are not going to get anything…not like Australia …because you were so stupid you signed the papers before our marriage without an interpreter”; “the papers” the mother had signed shortly before the marriage was a pre-nuptial agreement providing for each party to keep what they had brought into the marriage;
· on 26 February 2010 the father applied for a divorce in Poland, but the mother did not receive the divorce papers; the prerequisite for a divorce in Poland is “the irretrievable and complete disintegration of matrimonial life”;
· on 5 March 2010 the mother attended in person at the embassy in Warsaw to lodge the passport application, along with the other necessary papers she had obtained to support the application;
· on 17 March 2010 the embassy approved the issue of an emergency passport for the child; (appropriately, no attempt was made in the hearing below to place weight on the fact that the First Secretary and Consul had written at the foot of the approval form, “Note … family left Australia in 2009, so not resident in Poland under Hague Convention provisions”);
· it is unclear when the mother learned that the passport application had been approved, but it seems the passport was not given to her until immediately prior to her departure.
The father’s evidence
We do not propose to set out the evidence of the father in detail. It is sufficient to record that he joined issue with almost every allegation of significance the mother had made in her affidavit. For example:
· he denied that the mother told him she had taken advice about a divorce before leaving Australia;
· he denied he ever proposed the family go to Poland for his 50th birthday;
· he denied he ever proposed they return to Poland for only four months;
· he asserted it was the mother’s idea that they return to live in Poland permanently, and claimed this was their joint intention when they left Australia to live in that country.
The father, did, however, admit that he had not given the child’s passport to the mother. He said he had kept the passport for “safekeeping” because his employed accountant had told him that the mother intended to “play dirty” on him. The father’s evidence was that his accountant had told him this in December 2009, but the mother’s evidence was that the father had refused to hand her the child’s passport within one week of their arrival in Poland.
The father also said that he informed the mother before he petitioned for a divorce on 26 February 2010 that he intended to divorce her, after the “marriage deteriorated sharply after Christmas Day [2009]”. He said, “I told [the mother] that after a divorce, I will provide her with other accommodation in town, we will split some furniture, so she and my son can have it”. We take it from that statement, at least at that stage, there was no dispute that the child would be living with the mother following the divorce.
The application to adduce further evidence
On 30 March 2011, the mother filed an application in an appeal seeking leave to adduce further evidence. The mother recognised that she needed leave to file the application out of time and sought that leave.
In her affidavit in support of her application the mother said that the main reason for seeking to adduce further evidence was because she believed her previous legal representatives had “made mistakes when not including many pieces of evidence in my support that I have provided them with”.
We do not propose to refer to all of the evidence the mother sought to introduce, some of which would be of no assistance even if it were to be admitted. There was, however, a letter from a Community Legal Centre confirming the mother had obtained legal advice on 15 September 2009 regarding matrimonial matters, including an issue regarding a passport.
In a separate affidavit, the mother set out additional facts she wanted us to take into account. The affidavit traversed a range of topics, and contained allegations of factual matters and opinions designed to demonstrate that the order appealed was erroneous. Particular emphasis was placed on matters relating to the state of the marriage prior to leaving Australia, the father’s poor conduct towards the mother in Poland and the extent to which the child had become integrated into Polish life.
Although some of the matters to which the mother referred may have had some relevance, the “evidence” that seemed of most significance were translations of what were said to be verbatim transcripts of conversations between the mother and the father which the mother had secretly recorded whilst they were in Poland. The mother had made no reference to these in the proceedings below, although we note that she had advised the Australian Embassy, “I have got his vois [sic] recorded with a terrible things he saing [sic] about my life and health”. The mother claimed she had drawn the recordings to the attention of her Legal Aid lawyers, but they had elected not to use them.
We set out below an extract from the first alleged conversation (the date of which was not given):
[Mother]:
[Father’s name], listen
[Father]:
And third, I don’t want to listen to your allegations that “you are drinking”. This is not important anymore what you are saying, because I have my separate life already. I have to kick you out of here with pain in my heart not for you but for [the child].
…
[Mother]:
But I want to tell you (<pause>) this is not fair that only you are talking and I can’t
[Father]:
Get out of my office
[Mother]:
But wait [father’s name], sit down
[Father]:
Stop bullshitting, will you stop allegations
[Mother]:
[Father’s name], but these are not allegations, you are drunk every day
[Father]:
Will you stop your allegations
[Mother]:
These are not allegations
[Father]:
The fact that I am drunk is now only my fucking business, only my business
[Mother]:
But you are really hurting us
[Father]:
Fuck you! I am divorcing you
[Mother] (starting to sob):
But there is our tiny baby in here
[Father]:
This tiny baby will go to pussy, together with you, to a tiny flat
[Mother] (sobbing):
But why then did you bring us here?
[Father]:
So that I have a son
[Mother]:
But you should not have your son
[Father]:
Mentally ill people should not have children and you are one of them
[Mother] (sobbing):
I am not mentally ill, but I guess I will be soon
[Father]:
You are already mentally ill, [mother’s name], because you always were
[Mother] (sobbing, mumbling):
Wait, sit down
[Father] (loud):
Shut the fuck you mouth up
[Mother]:
Do not yell at me, I only want to talk to you normally
[Father]:
Shut up your snout or I will shut it for you, whore. Listen up, because this is something that you will need in your future life. Because for 5 thousand (<zloty>) you are going to be in a two room flat. And then you will have no influence here
[Mother]:
I do not want your money
[Father]:
It is you who in Australia threw the papers in my face and said that I will never see my son again, and that was a moment where it all started
…
The following is an extract from another of the purported conversations (again no date was given):
[Mother]:
… [Father’s name], excuse me, but you are very drunk
[Father]:
You are in my town, let me explain something to you, you are in my town, you are playing dangerous game, dangerous for your life, I am warning you, if you will keep playing this game, nothing is going to stop me, no, listen up, I am just warning you, just telling you, you are in my hometown. Things you are doing now, I will tell you in a minute…FEAR FOR YOURSELF, FOR YOUR HEALTH, AND LIFE.
[Mother]:
[Father’s name] you cannot threaten me like this, I am a mother of your son, I am no threat to you
[Father]:
I am not threatening you, I am just telling you that it could be very good or nothing
[Mother]:
Excuse me, what do you want from me?
[Father]:
Figure out yourself what I am talking about right now, because you know I have in here many contacts, lots of contacts. Now, if you will play with me this game… I am telling you
…
The mother also sought to rely upon affidavits designed to authenticate the translations of the tape recorded conversations and to confirm that the voices in the recordings were hers and that of the father.
The mother also attached to her affidavit a chain of emails with her friend and neighbour in Australia. On 8 December 2009, the mother wrote of her desire to return to Australia, but noting that it would be complicated because the father had the child’s passport. She also advised that she proposed to contact the Australian Embassy. In the email, the mother wrote:
In my pink [semble, rose tinted] glasses it shuld look that way: I’ll call them, tall the storry, and they wiil take me to the ambassy with may son, naxt day they’ll put us on the plain and the next day – we are save…sad but probebly it wuld not be like this… I am terrified to call to ambassy it is my last chans … [sic]
The mother also sought to introduce into evidence further emails between herself and the Australian Embassy, including an email from the First Secretary and Consul dated 18 December 2009 advising the mother that if she and the child both had Australian passports it was legal for her to return to Australia and live there, and that the father did not need to return with them.
The mother also sought to introduce an affidavit of another neighbour in Perth, who claimed that in September 2009, she and her husband had dinner with the mother and father, during which the father showed photographs of his home in Poland and a newspaper clipping showing it was on the market for sale. The deponent went on to say that the father had said that he would be going to Poland in October 2009 to celebrate his 50th birthday and to sell the home, and had not mentioned any plans of living in Poland permanently.
In support of the application to introduce all of this further evidence, the mother submitted that, if introduced, it would demonstrate that she had been right in claiming that the father had “planned everything” (i.e. in securing the return of the family to Poland by deception). She also submitted it would establish that the child had not ceased to be habitually resident in Australia.
Counsel for the State Central Authority opposed the introduction of the further evidence. She submitted that the evidence was not “fresh”; most of it was not relevant; and much of it related to very marginal issues. It was further submitted that the father had no opportunity to respond to the evidence in circumstances where the evidence may be capable of being addressed. It was also submitted the proceedings should not be delayed further to allow the father an opportunity to respond. Particular stress was placed on the fact that the tape recordings had not been produced to the Court or to the State Central Authority, and that it had not been established that the translations had been prepared by a certified translator. It was further submitted that the transcripts were of “marginal significance because they purport to be conversations”.
We consider there is much in the transcripts of the alleged tape recordings, which if verified, would provide evidence to corroborate what we regard as key elements of the mother’s case. However, we have determined we should consider the appeal without reference to any of the further material, including the transcripts. In some instances, the facts sought to be proved had already been adequately established. For example, the letter from the Community Legal Centre, whilst providing a specific date on which the mother obtained advice in Australia about the passport, does no more than corroborate the mother’s earlier unchallenged assertion. In other instances, the evidence was provided in a form which left its authenticity open to doubt, especially in the case of the transcripts. In many instances the evidence was available at the time of the hearing below, when the mother had legal representation. Other parts of the evidence would be relevant to a determination of what would be in the child’s best interests, but are not relevant to this application which is concerned with the forum in which such interests are to be determined.
The mother’s application to introduce further evidence is therefore dismissed.
The nature of the appeal
The appeal is brought pursuant to s 94(1) of the Family Law Act 1975 (Cth) (“the Act”). The effect of s 93A(2) of the Act is that such appeals proceed by way of a re-hearing, in which the appellate court must have regard to the evidence given in the proceedings out of which the appeal arises; has power to draw inferences of fact; and, in its discretion, may receive further evidence on questions of fact (see Allesch v Maunz (2000) FLC 93-033 at 87,515 – 87,516 [20] – [23]).
In the present matter, the Judge arrived at his finding on habitual residence by reference to untested affidavit evidence. The usual “advantages” enjoyed by a trial judge are therefore not present, and we are in as good a position as his Honour to determine the issue. In doing so, we have in mind what Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy (2003) 214 CLR 118 at 126 – 127 [25] (footnotes omitted):
25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
…
The references to the “constraints marked out by the nature of the appellate process” and the need to “give respect and weight to the conclusion of the trial judge” are a reminder that the appellate process is essentially a search for error. We therefore ought not interfere unless the Judge’s conclusion is erroneous, either because it was not available on the evidence, or because the process by which he arrived at it was flawed: Zafiropoulos & State Central Authority (2006) FLC 93-264 at 80,508 [10]; Simpson and Brockmann (2010) 43 Fam LR 32 at 44 [40]. If, however, we conclude that error is shown we are “authorised, and obliged, to discharge [our] appellate duties…”: Fox v Percy (supra at 128 [27]).
The law
It is unnecessary to set out all the relevant Regulations, since the only issue to be determined is whether the child was “habitually resident” in Poland prior to his removal, and the Regulations do not define that expression.
We should, however, record, as Crooks J did, that reg 1A(2) provides that:
(2) These Regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and
(c) recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
The authorities which discuss the meaning of the term “habitual residence” often make reference to the judgment of Lord Brandon of Oakbrook in In re J, which Crooks J cited. It will be recalled that his Lordship said the two words which make up that term should be given their “ordinary and natural meaning” and the question to be decided is one of fact.
However, as was said by the United States Court of Appeals for the Ninth Circuit in Mozes v Mozes (2001) 239 F. 3d 1067 at 1072 (“Mozes”):
We have yet to see a court succeed in applying the words “habitual” and “residence” without the aid of other words to explain why they do or do not apply to the “facts of the particular case”. Whether the other words amount to “spurious legal propositions” [as had been suggested by one eminent commentator] depends on whether they help or hinder courts in taking into account, and making sense of, all the circumstances of the cases before them. …
Facts, after all, do not come with labels attached, and the family situations of petitioners under the Convention are likely to be quite different from what most people consider “ordinary”. In order for decisions under the Convention to be intelligible, courts must be able to explain these conclusions and the reasoning used to reach them.
Thus, we note that even Lord Brandon found it helpful to suggest that in order to find that a person has become habitually resident in a place, it is necessary to demonstrate they have been in that place for “an appreciable period of time”, with a “settled intention”. These two expressions have often been employed by courts when attempting to explain their decisions. It is the language Waite J adopted in the summary of the law in Re B, which both counsel relied upon in the proceedings below, and to which Crooks J referred in his reasons.
The difficulty, of course, is that expressions such as “an appreciable period of time” and “settled intention” are arguably no clearer than “habitual residence”, and in turn require elucidation. Waite J in Re B attempted to provide such elucidation in a passage that Crooks J cited in his reasons. The passage was also cited with approval by the High Court in LK at 598 [40]. For convenience we repeat it below (the emphasis was added by the High Court):
Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.
All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
Importantly, the High Court in LK cautioned at 598 [40] that:
… it would be wrong to treat the references [in the authorities] “to settled purposes (or settled purpose or intention) as importing the old law of domicile by directing an inquiry in cases arising in connection with the Abduction Convention into whether the person whose place of residence is in issue is shown to intend to live there permanently or at least indefinitely.
The High Court went on to say at 599 [44], when adopting the views of the plurality in Punter,:
… the search is for the connection between the child and the particular state. That being the nature of the search the plurality’s references to settled purposes are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.
The reference by the High Court in this passage to a “shared intention” gives rise to the question of how the law deals with cases where the intentions of one parent may be described as “settled”, but the other parent has different intentions that cannot be so described. This we perceive is more difficult where the parents are living together. In an article often cited, Clive E.M., ‘The Concept of Habitual Residence’, [1997] The Juridical Review 137, Dr Clive concluded, (at 145), that in cases where both parents have an equal right to fix the child’s place of residence, and there appears to be a “genuine difference” in their respective intentions, “then the conclusion must be that there is no settled purpose or intention”.
At the very least, as the High Court said in LK at 596 [34], the “possibility of ambiguity or uncertainty on the part of one or both [parents] must be acknowledged” (our emphasis added).
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, and in our view must be dependent to some extent on the intentions of the parents. Thus, in a case which was mentioned in Crooks J’s reasons, the appellate court declined to interfere with a finding that a family had acquired a fresh habitual residence only one month after arrival in a new country. However, Butler-Sloss LJ, in delivering the principal judgment of the English Court of Appeal, was at pains to say (our emphasis added), “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”: Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555 (“Re F”).
There are, of course, cases where the acknowledged ambiguity or uncertainty in the intentions of one or both of the parents will become irrelevant because they have been pushed into the background by “the brute force of geography and duration” (Clive, supra at 140). Thus, in Zenel v Haddow [1993] S.L.T. 975, a child was found to be habitually resident in Australia after 15 months, notwithstanding assertions there was no settled intention on the part of the parents to remain in Australia. In that case Lord Marnoch said at 979:
It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.
On the other hand, as Dr Clive recognised (at 142), “the most difficult cases on habitual residence are usually those where the question is whether there has been a recent change in habitual residence”. We agree with him that in those cases, “the element of adequate duration is absent or doubtful and it is necessary to have regard to such factors as purpose and intention”. We recognise that in examining factors such as “purpose” and “intention” there may be cases in which it could be said that habitual residence has been acquired immediately (for examples, see Re M (Minors) [1993] 1 FLR 495 at 503 (“Re M (Minors)”); however, we also consider such cases would have to be seen as the exception, even allowing for the fact that there may be policy reasons against finding that a child does not have a place of habitual residence (as to which see LK at 594 [26], but see also at 595 [32]).
We also accept that merely because the purpose of an international relocation may be to allow parents to work on their relationship does not mean their purpose in relocating cannot be regarded as “settled”. Re B is an example of one such case. Similarly, the fact one party may be reluctant to agree to a move to a new jurisdiction; has misgivings about the state of the marital relationship; and has taken advice about a divorce before departing, does not mean they will not acquire a place of habitual residence in the new jurisdiction (see Feder v Evans-Feder (1995) 63 F. 3d 217).
On the other hand, the High Court held in LK (at 595 [29]) that the mother could not be said to have either a settled intention to reside permanently in Israel or a settled intention to reside permanently in Australia in circumstances where she had left Israel and come to Australia with the children “on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return”. The High Court went on to say (at 595 [32]), “Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left were to that extent ambiguous”.
Beaumont and McEleavy’s text, Beaumont, P & McEleavy, P, The Hague Convention on International Child Abduction, Oxford University Press, London, 1999, has been described as the “leading treatise on the Convention” (Mozes, supra at 1072). The learned authors opined (at 105) that “parents must exercise great care if considering whether to relocate to a different State, in particular where the relocation is itself an attempt to revive an ailing relationship”. They went on to say, “The majority of the case law indicates that should a parent in such a situation wish to change their mind they would have to do so in the immediate aftermath of their arrival.” For authority for the latter proposition they cited Paterson v Casse (1995) FLC 92-629 [Department of Health and Community Services, State Central Authority v Casse]. They then went on to suggest (at 107) that “ordinarily a period of six months residence should be required before a residence may be classified as being habitual”, albeit recognising that in England “the courts have, with few exceptions, adopted a very liberal interpretation of the time element required for the acquisition of a habitual residence”.
Whilst we accept there is no basis for selecting an arbitrary period such as six months, we consider there is nevertheless merit in the argument of Beaumont and McEleavy (at 101 and 108) that it is important to find a “strong and readily perceptible link” between the child and the country in which he is said to be habitually resident, as this recognises “that if children are to be linked to a State, and sent back there, they should have “a real and active connection with that place”. Additionally, as they say (at 108), concentration on the issue of whether, from the child’s perspective, there is a “real and active connection” with the purported place of habitual residence “further serves to distinguish the concept of habitual residence from that of domicile, which can be acquired immediately”.
In our view, the observations made by Beaumont and McEleavy sit very comfortably with what the High Court has said most recently in LK. Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.
In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”.
Resolution of factual disputes in Convention matters
Crooks J found there was “much conflict” in the evidence concerning the intentions of the parents when they took up residence in Poland. Before we discuss the way in which his Honour resolved, or failed to resolve, that conflict, it will be useful to say something about the way in which Australian courts are required to approach the resolution of factual disputes in Convention matters.
Historically, applications under the Convention were dealt with on affidavit evidence alone. The policy reasons for this were explained by the Full Court in Gazi and Gazi (1993) FLC 92-341 at 79,623 as follows:
The primary purpose of the Convention, the relevant Legislation and Regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody or access [sic]. See Convention, Articles 7 and 11, Family Law (Child Abduction Convention) Regulations, reg. 19(1). Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate.
The way in which evidentiary conflicts are resolved without cross-examination was explained in Panayotides v Panayotides (1996) 21 Fam LR 446 at 475, where Fogarty and Baker JJ (with whom Finn J agreed) referred with apparent approval to the approach that Jordan J had adopted at first instance. His Honour had said:
The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues which must be determined on the papers. This often presents the court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.
This approach of finding the common ground, noting the areas of conflict and looking at the inherent probabilities has been subsequently endorsed by the Full Court in cases where the matter is dealt with “on the papers”: see for example Director-General of the Department of Community Services & Timms (aka Black) (2008) FLC 93-376 at 82,655 [54].
However, the High Court has now made clear on a number of occasions that it should not be assumed that all applications under the Convention will be dealt with “on the papers”. The potential consequences of a return order are serious for both the child and the parent who removed the child (commonly the primary carer). It is therefore important that applications are determined by a principled adjudication of factual differences, rather than by glossing over differences, or determining the dispute by reference to less controversial matters.
The potential importance of cross-examination in ensuring a principled adjudication of Convention matters was most recently reiterated by the High Court in LK (at 590 [15]), where it was said that the requirement for applications to be “dealt with expeditiously does not yield any general, let alone inflexible, rule prohibiting cross-examination of deponents of affidavits filed in support of or opposition to the application”.
In making this observation, their Honours referred to MW v Director General, Department of Community Services (2008) 82 ALJR 629, where the plurality of the High Court referred not only to the prospect of leave being granted to allow cross-examination, but the Court taking action of its own initiative to ensure significant factual discrepancies are resolved. In emphasising the importance of this, the plurality described applications under the Convention as “a special type of proceeding”, since they are “apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country” (at 639 [46]).
In De L v Director General & NSW, Department of Community of Services & Anor (1996) FLC 92-706, the majority in the High Court had sounded the first note of caution about permitting the desire to provide a prompt resolution of Convention disputes to assume overarching importance. Their Honours, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, said at 83,456 (footnotes omitted):
The Convention requires the judicial or administrative authorities of Contracting States to “act expeditiously in proceedings for the return of children” (Art 11). The system established for Australia by s 111B and the Regulations is one which engages the judicial power of the Commonwealth. Regulation 15(2), in its present form, obliges a court, so far as practicable, to give to an application such priority “as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows”. Prompt listing for hearing is one thing; an over-hasty and insufficient hearing is another. That point is made in the concluding terms of reg 15(2) set out above. Further, there may be cases where, consistent with those precepts, some, even if restricted, cross-examination upon affidavits is appropriate to assist the court to reach a decision whether to refuse an order for the return of the child.
Recently, in Harris & Harris (2010) FLC 93-454, this Court, while determining that the primary Judge did not fall into error by not requiring cross-examination in a Convention application, nevertheless accepted that the Judge could “if she thought essential, have required the mother and the father to be available for cross-examination” (at 85,176 [69]).
We do not underestimate the logistical difficulties involved in permitting or requiring cross-examination in Convention cases. The resources of the courts that deal with such matters are already overstretched. Without cross-examination, cases can usually be concluded in a few hours, but once cross-examination is permitted, it is difficult to “draw the line”. Furthermore, it is common for one of the parents not to be in attendance at the hearing, but instead to be located on the other side of the globe, awaiting the outcome of an already elongated process.
In many cases, the court will be able to deal with the matter adequately on the basis of affidavit evidence – looking for the common ground, noting the areas of conflict and weighing the probabilities. However, there are a range of cases where such an approach will be inadequate. In those cases, failure to test controversial evidence in the time honoured way, or otherwise taking steps to resolve evidentiary conflict, will lead to a flawed outcome. The result on appeal in such cases, unless a re-hearing is directed, will usually be the dismissal of the case of the party who carried the burden of proof.
This was recognised by the State Central Authority in the proceedings below when submissions were provided concerning the mother’s foreshadowed “grave risk” defence, in relation to which the mother carried the burden of proof. Those submissions drew attention to the following remarks of Butler-Sloss LJ in Re F (supra at 553 – 554), which we respectfully adopt:
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
The Court of Appeal in Re F recognised, with the benefit of hindsight, and given the disparity in the evidence concerning the parents’ intentions, that it may have been helpful for there to have been cross-examination. This was said notwithstanding acceptance that “there is a real danger that if oral evidence is generally admitted in Convention cases, it would become impossible for them to be dealt with expeditiously and the purpose of the Convention might be frustrated” (per Butler Sloss J at 553, and see Russell LJ at 557 and Neill LJ at 558). Ultimately, however, the Court of Appeal concluded (at 555) that the primary judge had been “eminently justified” in rejecting the evidence of one parent concerning their intentions because of “an accumulation of evidence” which was found to be “compelling”.
Discussion
There is no challenge to his Honour’s statement of the law concerning the process by which a child’s place of habitual residence is determined. We take the law as having been authoritatively settled by the High Court in LK. A broad factual enquiry must be undertaken into all relevant factors, including those identified in the passage from Punter that the High Court cited with approval.
The “broad factual enquiry” in the present matter was undertaken entirely by consideration of affidavit evidence (supplemented by records produced by the Department of Foreign Affairs and Trade). Neither counsel sought to cross-examine the parents, nor any of the witnesses, and the Judge did not, of his own motion, require any cross-examination. These features of the proceedings are noteworthy, given the finding that there was “much conflict” in the evidence concerning the parents’ intentions in taking up residence in Poland.
We accept, as the High Court said in LK, that when determining a person’s place of habitual residence their intentions should not be given “controlling weight”. However, the High Court made this observation having first said that “examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides” and that “sometimes, intention will be very important in answering that question”. It follows that it would usually be important for a finding to be made as to the intention(s) of the person(s) whose residence is under scrutiny.
In our view, the intentions of both parents were important in determining whether the child was habitually resident in Poland immediately prior to the child’s removal. In the absence of cross-examination to resolve the conflict in the evidence, the question arises as to how his Honour resolved that issue. Clearly, no credibility findings could be made against either party when they were not cross-examined, and none of their evidence was found to be inherently incredible or improbable. The evidence of the various witnesses had also not been tested, and in any event the witnesses, including those who may be seen as “independent”, had differing recollections of what the parents had told them about their intentions. Furthermore, the utility of relying upon what the parents may have told others concerning their intentions may be seen as questionable in the circumstances of this case.
In our view, his Honour resolved the conflict by accepting the father’s evidence, without qualification, and without regard to the mother’s case. That this is so can be seen from paragraph 58 of his reasons, which for convenience we repeat here:
58.The parents, in my view, agreed to take up residence in Poland voluntarily and for a settled purpose of the father being able to take up work opportunities in Poland where the father had a home which had been renovated for family needs, had business interests and members of his family lived.
The mother’s case, clearly enunciated in the final paragraph of her affidavit, was that the father’s purpose in travelling to Poland, and taking the family with him, was to secure a divorce in that country – which is indeed what he successfully did, having filed the divorce petition just a few months after his arrival. If this was indeed the father’s motive, his decision to return to Poland says little of his own intentions about anything other than his place of residence during the time he was seeking a divorce. It says even less of his intentions concerning the future place of residence of the child, about whom (if the mother’s evidence was accepted) he had previously said, “pick up your bastard and get out of here you stupid bitch”, and “I will divorce you and you will have no food, no money and no place to live”.
It has been recognised that surrounding circumstances can show that the bona fides of a parent’s stated intentions are properly open to question: see for example Re M (Minors) (supra at 502). In our view, the mother’s case concerning the father’s real intentions warranted consideration. Her evidence was that his plans for the family to travel to Poland were formulated only after she had told him she had taken advice about a divorce in Australia. The father’s own evidence was that he informed the mother of his intention to obtain a divorce in Poland within a comparatively short time after their arrival, and he then filed for divorce just four months after arrival. Significantly, the parents had entered into a pre nuptial agreement in Poland which, we can infer, protected the father’s real estate and business interests in Poland, and which would have provided motive for the father preferring to end the marriage in that country, rather than in Australia (a nation of which he had been a citizen for the last quarter of a century). These facts were enough, in our view, for it to have been encumbent upon his Honour to engage with the wife’s case; explain why he did not accept it; and indicate why he preferred the father’s self-serving statements of his intentions.
The mother’s evidence also indicated that her own intentions were ambiguous. She had agreed to take up residence in Poland temporarily (“for up to two years”), but her purpose in doing so was not primarily to allow the father to “take up work opportunities”, but rather to see if he would make good on his commitment to desist from the conduct which had led her to seek advice about a divorce. Her intention, on a fair reading of her evidence, was to return to Australia if he did not do so. This was not a completely hidden intention, which we accept can carry no weight in Convention matters (see Beaumont and McEleavy, supra at 103), but rather one about which she had taken legal advice prior to her departure. It was an intention, the evidence establishes, she would have acted upon within weeks of her arrival, had the father not denied her access to the child’s passport.
We accept that his Honour recognised that the parents “may have had different or ambiguous intentions concerning the length of their stay in Poland”, but the only way we can discern that his Honour took that difference or ambiguity into account is by him recording that it should not be given “controlling weight”. We are unable to discern that the mother’s ambiguous intentions were given any weight at all.
We are also unable to discern that his Honour placed any weight on the fact that the mother’s evidence, had it been accepted, demonstrated that the father’s own (stated) intentions had undergone considerable fluctuation in a short space of time. First he wanted to return to Poland for his birthday. Next he wanted to go back for four months for economic reasons. After that, he wanted to go back for “up to two years”, also for economic reasons. We accept that by the time of his departure from Australia there were many indications that the father was planning for a lengthy absence. This fact, however, stood to be considered in light of the recent fluctuations in his plans.
Faced with acknowledged divergence in the evidence concerning the parents’ stated intentions, and with no reason to discount the mother’s suspicions about the veracity of the husband’s stated intentions, we consider his Honour had three alternatives available to him.
The first was to find, and adequately explain, that the outcome would be the same regardless of which party’s evidence was accepted.
The second was to acknowledge that in the absence of any request to cross-examine, and in the absence of any reason to find that the mother’s evidence was inherently incredible or improbable, he should proceed on the basis that the mother’s evidence was accurate, or at least could be accurate: Re F (supra), and see also Scott & Scott (1994) FLC 92-457 at 80,729. The State Central Authority carried the burden of establishing on the balance of probabilities that the child was habitually resident in Poland. Therefore, if the mother’s evidence was accepted, or at least could not be rejected, and it established that the child was not habitually resident in Poland, then the application had to be dismissed.
The third alternative was to require cross-examination, at least on the most contentious issues. Both parents were in Perth for the hearing, and many of the witnesses lived in Perth. At least some of the difficulties usually associated with cross-examination in Convention cases were therefore not present. By insisting on cross-examination it would be possible for the Court to make findings on the disputed matters and then apply the law to the facts as found.
Crooks J’s failure to adopt either of the latter two alternatives did not, in our view, lead to appellable error in him finding that the parents (and hence the child) had ceased to be habitually resident in Australia upon their departure in October 2009, since even on the mother’s evidence that finding was available. As the authorities make clear, habitual residence can be lost in a single day.
However, the abandonment of Australia as the place of habitual residence was not the determinative issue. The critical question was whether the child had assumed habitual residence in Poland. The answer to that question depended in part on the parents’ intentions but, as his Honour recognised, it depended also on a range of other matters, including the extent to which the child had “integrated into Polish life”.
His Honour’s finding that the parents and the child had significantly integrated into Polish life was clearly critical in finding that the child was habitually resident in Poland, where the family had spent five months. However, in reaching that conclusion we consider his Honour failed to place any weight on the mother’s communications with the Australian Embassy from December 2009 to March 2010, which would have thrown much light on “the underlying reality” of the connection with Poland.
The mother’s evidence, if accepted, was sufficient for his Honour to have found that:
· after leaving Australia, the father had made no effort to repair the marital relationship as promised – in fact his behaviour deteriorated after arrival in Poland;
· from 14 December 2009 to the date of her departure, the mother was negotiating a complex bureaucratic process to obtain an emergency passport without the father becoming aware (in circumstances where she alleged he had made various threats, including to kill her and the child);
· the mother was unable to depart Poland any earlier than she did because the father had refused to give her the child’s passport (an action he had taken deliberately because he feared the mother would “play dirty”, presumably by removing the child from Poland).
In our view, his Honour’s finding that the mother had “started making inquiries about leaving Poland some four to six weeks after her arrival, unbeknown to the father” failed to convey the reality of the situation which developed within a short time after the family’s arrival in Poland. The evidence established that the mother was doing far more than “making inquiries about leaving Poland”. She was making concerted efforts to obtain an emergency passport for the child so that she and the child could depart Poland, while at the same time the father was attempting to prevent her from doing so, by secreting the child’s passport.
Had his Honour placed weight on these matters, we consider he would have viewed through a different prism the elements of the evidence which persuaded him that the parents and the child had “significantly integrated into Polish life”. The matters on which his Honour principally relied in this regard were set out in paragraphs 56(a) to (g) of his reasons, many of which related to things that occurred, or at least continued, in the period after 14 December 2009. Rather than indicating that the mother and child were integrating into Polish life, they should have been seen as nothing more than attempts by the mother to keep herself and her child safe, and to make proper arrangements for the child’s day-to-day care and happiness, pending their departure from Poland.
Although the authorities speak of a person acquiring a place of habitual residence only if they have taken up that residence “voluntarily”, we do not wish anything we have said to be seen as suggesting that a significant period of involuntary residence cannot ultimately be found to constitute habitual residence. The examples sometimes given in the cases are Napoleon and Robinson Crusoe, who would probably have been found to be habitually resident on their respective islands, even though they wanted to be elsewhere. However, in the present case, the period of involuntary residence was relatively short.
It is also not without significance that the duration of the involuntary residence was the consequence of the actions of the father, who now seeks to rely upon it. The significance arises from the fact that one of the policies underpinning the Convention is that parents should not be able unilaterally to choose the forum in which they litigate their disputes. In our view, a court ought not strive to find habitual residence in a country where the beneficiary of such a finding had effectively prevented the other parent from leaving that country. This would be especially so in a case where it is suggested that a child had become habitually resident in a country in which he spent the last five months, when the other available forum for determination of any dispute is the country in which the child had been habitually resident for the previous three years.
Conclusion
There were significant acknowledged, but unresolved, factual issues confronting the Judge. Although it was an option open to him, we do not consider his Honour erred in failing to require the discrepancies to be resolved by cross-examination. Both parties were represented by competent counsel and neither suggested there be cross-examination. We should also note that by the time of the hearing, the matter had been pending for seven months (i.e. two months longer than the child had spent in Poland). The final resolution may have been even further delayed had his Honour, of his own motion, required cross-examination.
However, in circumstances where the mother’s evidence could not be rejected, we consider his Honour fell into error in:
· failing to engage with an important element of the wife’s case (i.e. that the father’s intentions were duplicitous);
· failing to place any weight on the ambiguity in the mother’s own intentions;
· failing to recognise that the father’s stated intentions were very recent in origin and had undergone significant change;
· conducting the enquiry without sufficient regard to the fact that the mother was taking active steps to terminate her residence and that of the child in Poland soon after their arrival;
· failing to recognise that the continuing residence of the child and mother in Poland was not the result of any settled intention, but the result of the father’s actions in preventing them from leaving.
Given the ambiguity in the mother’s intentions, the recent fluctuations in the father’s intentions and the possibility that the father’s intentions were duplicitous, we are not persuaded that the “forces of geography and duration” had sufficiently come into play after five months to justify a finding that the child was habitually resident in Poland, especially when for most of that period one parent had been making every effort to remove the child from that country.
We conclude the State Central Authority failed to discharge the burden of proving, on the balance of probabilities, that the child was habitually resident in Poland. The application should have been dismissed, and we will order accordingly.
Costs
We took costs submissions at the conclusion of the hearing, but ultimately indicated we would allow further written submissions if costs issues were pursued, including any request for costs certificates.
Although we will make directions allowing for the filing of costs submissions we note that the mother seems to have incurred little in the way of costs. Furthermore, our preliminary view is that this would not be an appropriate case for an order for costs against the State Central Authority. The position adopted by the State Central Authority was responsible. Its case was not only arguable, but presented with great care and skill. As for costs certificates, we note that the provisions of s 14(1)(e) of the Federal Proceedings (Costs) Act 1981 (Cth) would appear to prevent the grant of a certificate to the State Central Authority.
I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Moncrieff JJ) delivered on 8 July 2011.
Associate:
Date:
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