Secretary, Department of Family and Community Services v Padwa

• Jurisdiction: Australia Federal only
• Court: Family Court (Australia)
• Judge: Murphy,Bryant CJ,Kent JJ
• Judgment Date: 15 April 2016
• Date: 15 April 2016

([2016] FamCAFC 57)

Australia, Family Court.

(Bryant CJ; Murphy and Kent JJ)

Secretary, Department of Family and Community Services

and

Padwa 1

Treaties — Application — Convention on the Civil Aspects of International Child Abduction, 1980 — Family Law (Child Abduction Convention) Regulations 1986 (Cth) — Regulation 16(1A)(b) — Test for determining habitual residence of child immediately prior to retention — Possibility of two habitual residences — Whether trial judge applying correct test in determining question of habitual residence — Whether Convention properly invoked upon child's retention in Australia

Relationship of international law and municipal law — Treaties — Interpretation — Convention on the Civil Aspects of International Child Abduction, 1980 — Family Law Act giving effect to Convention in Australia — Family Law (Child Abduction Convention) Regulations 1986 (Cth) — Regulation 16(1A)(b) — Determination of habitual residence — Jurisprudence from other jurisdictions — Whether binding — Whether uniformity desirable — Whether consistent with Australian jurisprudence — Whether Convention properly invoked upon child's retention in Australia — The law of Australia

Summary:2The facts:—A child was born in the Netherlands during 2009. Her father lived in the Netherlands whereas the child's mother lived in Indonesia. In October 2015, the father permitted the child, who had been living with him in the Netherlands, to travel to Indonesia for nine days to visit her mother. At the end of the visit, the mother advised the father that she would not return the child. In December 2015, the mother, her new husband and the child travelled to Australia and the father took action under the Hague

Convention on the Civil Aspects of International Child Abduction, 1980 (“the Convention”).

The Netherlands and Australia were parties to the Convention but Indonesia was not. The Family Law (Child Abduction) Regulations 1986 (Cth), which were made pursuant to the Family Law Act 1975 (Cth), gave effect to the Convention in Australia. Regulation 16(1A)(b) provided that a child's removal to, or retention in, Australia was wrongful if the child habitually resided in a Convention country immediately before the child's removal to, or retention in, Australia.

The appellant, the Australian Central Authority, commenced proceedings before the Family Court of Australia seeking the child's return to the Netherlands. The Authority's application was dismissed at first instance, the trial judge reasoning that the child had not been habitually resident in the Netherlands immediately prior to her retention in Indonesia or arrival in Australia.3 Furthermore, the child had had two habitual residences. The appellant appealed. It asserted that the child's retention in Australia was wrongful since the child had habitually resided in a Convention country prior to her retention in Australia in accordance with Regulation 16(1A)(b) and the person seeking her return had rights of custody which had been violated when she had not been returned to the Netherlands.

Held:—The appeal was allowed.

(1) The trial judge had failed to apply the correct test for determining the child's habitual residence immediately prior to the date of her retention in Australia. The question was whether, immediately prior to that date, the child's presence in the Netherlands had had a degree of settled purpose from the child's perspective in all the circumstances of the case. The only conclusion reasonably open on the evidence was that the child had been habitually resident in the Netherlands on the date of her retention in Australia by the mother. The child had to be returned to the father (paras. 9, 38, 41–2, 59–60 and 75).

(2) The trial judge had erred by attributing “controlling weight” to the parties' intentions and particularly the mother's intentions. The shift away from concentrating on shared parental intention to determine habitual residence was evident from three decisions of the United Kingdom Supreme Court. Although not binding, uniformity with decisions made in other jurisdictions interpreting the same Convention was desirable, and these authorities were consistent with a judgment of the High Court of Australia (paras. 35 and 73).

(3) Regulation 16(1A)(b) did not provide that a child had to have habitually resided only in a particular Convention country. However, even if this child could be habitually resident in both Indonesia and the Netherlands, that

nevertheless meant that the child had to be returned to the Netherlands. Her retention in Australia, in breach of the father's rights of custody, remained wrongful (paras. 64 and 68).

The following is the text of the judgment, delivered by the Full Court:4

1. K (“the child”) was born in the Netherlands in October 2009. Her father, Mr S, lives in the Netherlands; her mother, Ms Padwa, in Indonesia. In late 2015 the father permitted the child, who had been living with him in the Netherlands, to travel to Indonesia for nine days between 17 and 25 October to visit her mother. On the latter date, the mother advised the father that she would not return the child.

2. On that date, the child was in Indonesia with her mother. That action by the mother resulted in the father commencing proceedings in the Netherlands for the Dutch equivalent of parenting orders. Indonesia is not a signatory to the Convention on the Civil Aspects of International Child Abduction concluded at the Hague on 25 October 1980 (“the Convention”).

3. On 19 December 2015, the mother, her new husband and the child travelled to Australia. The father took action under the Convention and, on 24 December 2015, the Central Authority filed an application prescribed by the Family Law (Child Abduction) Regulations 1986 (Cth)1 (“the Regulations”) seeking the return of the child to the Netherlands.

4. On 24 March 2016, Le Poer Trench J dismissed the Central Authority's application. The Central Authority now appeals that decision.

5. The primary basis of his Honour's order dismissing the application was that the child was not habitually resident in the Netherlands immediately prior to her retention in Indonesia or Australia. That determination is the sole focus of this appeal, albeit that the Central Authority's challenge has additional sub-elements including, for example, an assertion that his Honour took account of irrelevant considerations in reaching that decision.

6. On 24 December 2015, orders were made in the Family Court of Australia ex parte which restrained the mother from removing the child from Australia pending the determination of the proceedings.

Following the dismissal of the Central Authority's application on 24 March 2016 and the discharge of the orders made on 24 December 2015, the Central Authority obtained an order suspending discharge of the orders placing the child on the Airport Watch List and retention by the Court of the child's Dutch and Indonesian passports pending the hearing and determination of this appeal.

7. The application under the Convention was heard by Le Poer Trench J over four days in February and March 2016 and judgment was delivered within two weeks. Upon filing a notice of appeal on 31 March 2016, this matter was listed for hearing before the Full Court on 5 April 2016.

8. Applications under the Convention should always be dealt with expeditiously but particular urgency arises from the fact that the mother had to return to Indonesia to care for her other two children and the child is now living with the mother's Australian mother-in-law and not with either parent.

9. For the reasons which follow we are of the view that his Honour erred in law in failing to apply the correct test for determining whether the child was habitually resident in the Netherlands immediately prior to her retention in Australia on 19 December 2015.2 We consider that the only conclusion reasonably open to his Honour on the evidence before him (and reasonably open to us as at the time of the hearing of the appeal) was that the child was habitually resident in the Netherlands on that date. Aside from the question of habitual residence, it is not in issue that each of the requirements in reg. 16(1A) are met and no defences were raised before his Honour and none are sought to be agitated before us. The consequence is that we must order the return of the child to the Netherlands3 and an order to that effect will be made together with consequential orders giving effect to that order.

WHAT ISSUES ARISE ON THE APPEAL?

10. There was only one issue below: was the child habitually resident in the Netherlands immediately prior to her retention in Australia on 19 December 2015?4 His Honour's primary finding was that she was not and that finding formed the basis for dismissing the application.

11. Grounds 1 to 6 assert legal errors in the determination of habitual residence.5 Ground 6 is a subset of the previous five grounds and asserts that irrelevant material was taken into account by his Honour, and that he also failed to take into account relevant matters.

12. Grounds 7, 8 and 9 raise evidentiary issues in relation to which it was said that his Honour erred.

13. The determinative issue in the appeal is whether his Honour applied the correct test in determining the question of habitual residence. We propose to deal with the first six grounds under the general rubric of the application of the incorrect test of habitual residence, which is how the appeal was argued.

14. His Honour found, correctly in our view as Indonesia is not a Convention country:

6. … By application of Regulation 16(1A)(b) the child could only be found to have been “wrongfully retained” if it is established that she was habitually resident in The Netherlands on or after 19 December 2015, notwithstanding she had been living in Indonesia with her mother since October 2015.

15. Subsequently, his Honour posed for himself a secondary question: whether the child was...