De L v Director General, NSW Department of Community Services

In paragraphs 28, 29, 31, 59, 66 and 68, references to "judgement" have been corrected to "judgment".

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

STATE CENTRAL AUTHORITY SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING

1. Subject to compliance with paragraph 5 of these orders, the child, X born 2021 ("the child") be returned to Belgium pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2. The child be returned within 14 days of the date of compliance by the father with paragraph 5 of these orders and the respondent notify the applicant of her proposed date of departure as soon as practicable upon making such arrangements and provide a copy of the tickets to the father and to the Australian Central Authority.
3. The respondent be at liberty to accompany the child to Belgium.
4. The Australian Central Authority notify the Belgium Central Authority of the mother's date of departure.
5. The return of the child to Belgium is conditional upon the requesting parent, Mr B of C Street, Region D, Belgium doing all acts and things necessary to affect the following, and the following being effected:

(a) paying for economy flights for the respondent mother and the child from City E airport to Belgium;

(b) paying the sum of EUR7,500 to the mother

(c) with such payments to be made by the father depositing into an account forthwith nominated by the mother's solicitor all funds required to be paid pursuant to these orders

1. Paragraph 5 of the orders made 7 March 2024 is hereby discharged and the respondent or her nominee authorised in writing is permitted to collect the child's and the mother's passport immediately upon receipt of a sealed copy of this order.
2. Pending the child's departure from Australia for return to Belgium, the respondent continue to be restrained and an injunction issued, restraining her from causing or permitting suffering to the child:

(a) to be removed from the Commonwealth of Australia and in this regard all offices of the Australian Federal Police be directed to enforce, if required, the provisions of such order;

(b) to apply for any further or other passport or passports for the child;

(c) to be removed from the state of State M;

(d) to reside other than at her present residential address or any other residence, at which the applicant has agreed the said child may reside.

1. Paragraph 7 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child's return to Belgium AND IT IS REQUESTED that the Australian Federal Police remove the name of the child X born 2021 from the Airport Watch List upon presentation for boarding the nominated flight to Belgium on the date nominated for the said travel.
2. A sealed copy of these orders be provided forthwith to the Marshal of the Federal Circuit and Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
3. The Marshal of the Federal Circuit and Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
4. Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
5. Otherwise the Application of the Department of Communities and Justice be and is hereby dismissed.

1. These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Families, Fairness and Housing & Whiting has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application by the Secretary to the Department of Families, Fairness and Housing ("the State Central Authority") filed on 6 March 2024 seeking the return to Belgium of the child, X ("the child"), born 2021 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations").
2. The respondent is the mother of the child. The requesting parent, who lives in Belgium, is the father.
3. The relevant regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth) ("the Act"), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
4. The Hague Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from their country of habitual residence. Both Australia and Belgium are signatories to the Hague Convention.
5. Upon establishment of the pre-requisites to a return order, the jurisdictional facts as prescribed by reg 16(1A) of the Regulations, there are limited circumstances or exceptions to return which may be relevant in response to an application to return a child to their country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
6. If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child:

Reg 16 Obligation to make a return order

(1) If:

(a) an application for a return order for a child is made; and

(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and

(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under sub-regulation (1A);

the court must, subject to sub-regulation (3), make the order.

(1A) For sub-regulation (1), a child's removal to, or retention in, Australia is wrongful if:

(a) the child was under 16; and

(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

(d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and

(e) at the time of the child's removal or retention, the person, institution or other body:

(i) was actually exercising the rights of custody (either jointly or alone); or

(ii) would have exercised those rights if the child had not been removed or retained.

(2) If:

(a) an application for a return order for a child is made; and

(b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and

(c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

the court must, subject to subregulation (3), make the order.

(3) A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:

(a) the person, institution or other body seeking the child's return:

(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

(c) each of the following applies:

(i) the child objects to being returned;

(ii) the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

(d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

Note 1: In considering whether the matter mentioned in paragraph (3)(b) is established:

(a) the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and

(b) the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and

(c) the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.

Note 2: For the definition of family violence, see section 4AB of the Act.

(4) For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

(5) The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.

(6) If:

(a) the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and

(b) a party to the proceedings, or an independent children's lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):

(i) in a return order for the child; or

(ii) in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;

the court must consider whether it would be appropriate to include the condition.

(7) In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).

(8) Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).

1. The Regulations require that applications for the return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
2. In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
3. In this case, counsel for both parties did not cross-examine and the hearing proceeded on the basis of submissions.
4. The State Central Authority asserts that the child's removal to or retention in Australia, accordance with regs 16(1) and (1A), was wrongful because:

(a) the application was made within one year of the child's removal to Australia;

(b) the child is under the age of 16;

(c) the child was habitually resident in Belgium as at the date of removal;

(d) the requesting parent, the father, has rights of custody in relation to the child, which he was exercising immediately prior to the child removal to Australia; and

(e) the removal of the child to Australia was in breach of the father's rights of custody.

1. The respondent conceded all jurisdictional facts, other than the child was habitually resident in Belgium.
2. The respondent opposes the application for return and asserts the child was without a habitual residence at the relevant time, or alternatively the child's habitual residence was the Netherlands and not Belgium. She did not seek to rely on any regulatory exceptions to return.

1. The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
2. The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services (2001) 206 CLR 401.

1. The hearing was conducted electronically via Microsoft Teams, which enabled the requesting parent to participate in the proceedings.
2. I wish to express my appreciation to both counsel for the professional and courteous manner in which the proceedings were conducted.

Evidence and documents relied upon by the parties

1. The State Central Authority relied upon the following documents:

(a) Form 2 Application filed 6 March 2024;

(b) Affidavit of Ms F filed 1 July 2024;

(c) Affidavit of the father filed 2 July 2024;

(d) Affidavit of Mr G filed 2 July 2024;

(e) Affidavit of Mr H filed 2 July 2024;

(f) Affidavit of Ms J filed 2 July 2024; and

(g) Outline of Case document filed 4 July 2024.

1. The respondent relied upon the following documents:

(a) Amended Form 2A filed 8 July 2024

(b) Affidavit of Ms Whiting filed 24 April 2024;

(c) Affidavit of Ms Whiting filed 27 June 2024;

(d) Affidavit of Ms K filed 27 June 2024;

(e) Affidavit of Ms L filed 27 June 2024; and

(f) Outline of Case document filed 5 July 2024.

1. The requesting father was born in Belgium, continues to live there, and is a Belgian citizen. The mother was born in the Netherlands and is a Dutch citizen.
2. In 2003 the maternal family moved from the Netherlands to State M, prior to returning to the Netherlands around 2006. In or around 2010, the maternal grandparents returned to State M, whilst the mother remained in the Netherlands to pursue her studies. It was around this time in which the mother and father were first acquainted.
3. Around 2015, the mother returned to State M to live with her parents and between late 2019 and early 2020, the father travelled to State M to visit the mother. According to the mother, her relationship with the father commenced in early 2020.
4. In mid-2020, the parents began living together in Belgium, after the mother successfully applied for permission to leave Australia during the Covid-19 pandemic.
5. In mid-2021 the child was born in Belgium and is a Belgian citizen. She is also a citizen of the Netherlands and holds a Dutch passport.
6. After the child's birth, the family remained living together at the father's property in Belgium. According to the father, from May 2022 the maternal grandparents exerted pressure for the family to return to State M, culminating in the purchase of one-way flights from Belgium to Australia in mid-2022.
7. On 1 September 2022, the father's parenting application to the Belgian court was served on the mother (court book, page 243), which required the parents to attend court on 6 September 2022.
8. On 7 September 2022 the mother and father separated. Following separation, the mother and child moved into a residential community in the Netherlands, although the mother remained officially registered at her address in Australia (court book, page 93). The child remained officially registered at the former family home in Belgium. The mother and child's place of residence was approximately 30 kilometres from the father's home in Belgium.
9. On 3 October 2022, the mother filed a Response to the father's writ of summons. The father's application was heard on 4 and 12 October 2022. On 12 October 2022, the parties reached an agreement about interim provisional rights of access between the father and child (court book, page 81). On 9 November 2022, judgment was handed down, interim contact continued, a mediator was appointed, and the application was adjourned to 7 February 2023.

1. I now turn to consider the child's habitual residence.

1. The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
2. The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582 ("LK") in which French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
   1. ... 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.

...

1. ... it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.

...

1. When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live - where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
2. ... 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.

...

1. ... 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.

2. It follows ... that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.

...

1. Moreover, the approach described in [Punter] accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.

1. There is a divergence in judicial authority in the United Kingdom and Australia, about whether one parent can unilaterally change the habitual residence of a child, noting the statements in LK (supra) at [34].
2. In In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35; [2016] AC 76 ("In re R"), the Supreme Court in the United Kingdom, made clear that there was no "rule" that one parent cannot unilaterally change the habitual residence of the child. The decision also confirmed that habitual residence is a "question of fact" and requires an evaluation of "all relevant circumstances".
3. Another divergence of approach between the Supreme Court of the United Kingdom and Australian authority, is the length of time ordinarily required to establish habitual residence. In In re R, the Supreme Court of the United Kingdom held that there was no requirement that a child should have been resident in a country for a particular period of time. That position is in contrast to the Australian position, namely, in order to find someone is habitually resident in a place they must generally have lived there for an appreciable period: Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147 ("Zotkiewicz").
4. In Zotkiewicz at [82]-[83], the Full Court of the Family Court stated the task of a judge was twofold:
   1. 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.

The courts of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the Court is seized.

1. Counsel further submitted the Belgian court was satisfied in September 2022 that the child was habitually resident in Belgium, because it exercised jurisdiction and remained satisfied of such because it continued to exercise jurisdiction.
2. Furthermore, on 23 October 2023 the Belgian appeals court dismissed the mother's appeal, including her contention the Belgian court "no longer had jurisdictional competence to deal with the case" and it should be "referred to the Dutch courts".
3. Counsel for the mother contended the child was not habitually resident in Belgium at the relevant time, and had no habitual residence. He directed me to the chronology of the court proceedings in Belgium which initially occurred on 6 September 2022, 4 October 2022 and on 12 October 2022. At the hearing on 12 October 2022, the mother's intention was to live in Australia and ultimately orders were made permitting the child to live in the Netherlands with the mother and spend time with the father in Belgium.
4. The mother's counsel submitted that the Belgian court found it had jurisdiction at the time the first application was filed, because at that time the child was living in Belgium. Further, the assumption of jurisdiction was not a finding of habitual residence of the child, which falls to be determined as a question of fact. Counsel for the mother asserted the continuation of the court proceedings is not relevant to the practical, or factual determination of where the child was habitually resident. The court should look at the reality of the child's living arrangements during the period in the Netherlands and the mother's intention.
5. The judgments of the Belgian court referred to by counsel made it abundantly clear the mother did not intend to assume habitual residence in the Netherlands as it was her intention to live permanently in Australia, despite having been born in the Netherlands, speaking Dutch, and holding a Dutch passport. The child also had a Dutch passport.
6. The reality of the child's living arrangement was that the child lived with the mother in a women's shelter in the Netherlands, which counsel for the mother described as "being in limbo". He also submitted the mother was not at that time, particularly connected to the Netherlands. During the eleven month period in the Netherlands, the child continued to spend time with her father in Belgium. Counsel for the mother asserted the time between the father and the child was brief and limited, which resulted in the child losing her connection to Belgium and thus her habitual residence in that State.

1. Regulation 15 permits a court to include regulations, by orders, if it considers those conditions are appropriate to give effect to the Convention. The regulations provide as follows:

(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:

(a) make an order of a kind mentioned in that regulation; and

(b) make any other order that the court considers to be appropriate to give effect to the Convention; and

(c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.

(5) To avoid doubt, a court may make an order under paragraph (1)(b), or include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), for the purpose of reducing a risk referred to in paragraph 16(3)(b) regardless of whether the court is satisfied that:

(a) the risk will eventuate, or is likely to eventuate; or

(b) the risk has eventuated in the past.

(6) In considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), the court may have regard to the following matters:

(a) whether compliance with the proposed condition will be reasonably practicable;

(b) whether the condition is proportionate;

(c) whether the condition would usurp the regular functions of the courts or authorities in the child's state of habitual residence;

(d) whether the condition would be enforceable in the jurisdiction or jurisdictions in which it would apply.

(7) Subregulation (6) does not limit the matters to which the court may have regard in considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b).

1. There were no submissions by either party about conditions for return of the child until raised by the court.
2. Counsel for the mother submitted any order for return should be conditional upon the father paying to the mother EUR7,500, which would enable the mother to obtain appropriate accommodation and become settled in Belgium. Counsel also submitted that the mother should be responsible for the airfares for the mother and child.
3. Counsel for the State Central Authority submitted the father would pay the airfares for the mother and child to return to Belgium and would pay a sufficient sum to support the mother to enable her and the child to live near him, although a precise amount had not been agreed.
4. I consider a lump sum payment would be appropriate, notwithstanding lack of evidence about the parties' financial positions, other than the father operates his family farm and the mother was not employed in the Netherlands.
5. I will make orders accordingly.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.