High Court orders return of child to Australia under Hague Convention due to established habitual residence there.

Neutral Citation Number: [2009] IEHC 345

THE HIGH COURT

2009 9 HLC

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 AND IN THE MATTER OF THE

HAGUE CONVENTION AND IN THE MATTER OF R. S. A MINOR

BETWEEN/

A. S.

APPLICANT

AND

C. S.

RESPONDENT

JUDGMENT of Mr. Justice John MacMenamin delivered the 17th day of July, 2009.

1. The Hague Convention on the Civil Aspects of International Child Abduction 1980 (the “Hague Convention”) was

incorporated into Irish law by the Child Abduction Enforcement of Custody Orders Act 1991. Its objectives (as set out in

article 1 of the Convention) are a) to secure the prompt return of children wrongfully removed to or retained in any

Contracting State; b) to ensure that rights of custody and access under the law of one Contracting State are respected

in other Contracting States.

2. Pursuant to article 3 of the Convention, the removal or retention of a child is considered wrongful where:

“… it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone

under the law of the State in which the child was habitually resident immediately before their removal or retention

…”

The issues of “habitual residence” and consent to removal and retention lie at the heart of this application.

3. On 13th February, 2009 the applicant caused an application to be made to the central authority for Australia under the

terms of the Convention for the enforcement of his rights of custody to the minor named in the title herein (hereinafter

called “R.”) and the return of R. under article 12 of the Hague Convention to the jurisdiction of the courts of Australia.

4. The applicant and the respondent were married to each other on 8th December, 2007 in Manly, New South Wales,

Australia. They lived together for a period of time after their marriage until late 2008 when they came to Ireland in

circumstances later described.

5. It is undisputed that pursuant to the laws of Australia the applicant and respondent have equal parental custody rights

in respect of their dependent child. The applicant contends that the respondent’s retention of R. in Ireland is unlawful

under the law of Australia and under the Hague Convention in that it is a frustration of the applicant’s custody rights.

6. The applicant and respondent met for the first time in Australia only in June, 2007. They are in their twenties. The

respondent had been on a long term working visit to Australia. The respondent became pregnant within a month, that is

to say, in July 2007. The parties say they finally ascertained that she was certainly pregnant in or about September,

2007. They married that December. R. was born on 22nd April, 2008, in New South Wales and is now 14 months old. She

is currently living with her mother in Cork. Her father returned to Australia in January 2009, but attended court for this

hearing.

The respondent’s background

7. The respondent grew up in Ireland. She travelled to Australia in the year 2005. She remained there, travelling round the

country until the end of 2006 or beginning of 2007. In February 2007, she obtained employment there in a company called

Gardner Australia who are an I.T. research company. Her job involved working on the sales of I.T. events. Her salary was

approximately AU$50,000 per year or its equivalent in Irish euro, €25,000. She met the applicant in June of that year and

married him six months later in December.

The applicant’s background

8. The applicant is a teacher. He has continued to acquire post graduate qualifications subsequent to obtaining his

primary degree. He completed a Bachelors Degree in teaching and physical education at Newcastle University, Australia.

He enrolled for the degree of Master of Learning Innovation at Queensland University of Technology for which he received

post a graduate scholarship. At the times relevant to these proceedings he was employed by the New South Wales

Department of Education and Training as a physical education teacher. The applicant by reason of his own background

has a particular interest in engaging indigenous Australian students, and also students from a low socio-economic

background. He has an extensive background in sport and has coordinated, participated in, and coached a number of

sports at various levels, in particular in the area of rugby union and rugby league.

9. When the couple discovered that the respondent was pregnant in September, 2007, they decided to live together and

moved to a one-bedroom apartment in Manly, New South Wales. They had discussions about what they would do if their

relationship did not work out as it was a new one. I find they both agreed that if they could not live as a couple they

would share custody of R.. The respondent says she wished for R. to be born in Ireland but could not do so as she was

precluded from flying home by reason of a medical condition during pregnancy.

10. During her first trimester, she was diagnosed with Deep Vein Thrombosis in her right leg. This was determined to be

spontaneous with no clear cause found. This condition was a significant complication to a normal pregnancy and the

respondent required daily injections of blood thinners. The diagnosis also prevented the respondent from working which

meant that for the period of her pregnancy the applicant was the sole breadwinner. It also precluded any possibility of her

flying home to Ireland.

11. In January, 2008, the parties moved house to the central coast of New South Wales in anticipation of an employment

transfer for the applicant. From January to April of that year the applicant continued to work at Mosman High School until

he was transferred to another school, the Hunter School of Performing Arts. The address of the parties’ residence

ultimately was in Buff Point, New South Wales.

12. From the time that the parties commenced to reside at Buff Point in 2008 the respondent’s situation was isolated. Her

ties in Australia were mainly in Sydney. She felt the lack of access to family support in Ireland. The respondent’s family

had only been able to visit the couple for a period of roughly one month when R. was approximately six weeks old.

13. There is an issue as to whether or not the respondent suffered from post-natal depression after R.’s birth. The

applicant says that it was for this reason he suggested that the parties might spend a period of time in Ireland where she

could receive the support of her family and that R. and he would have the opportunity to meet C.’s extended family and

network of friends in Ireland. The respondent says their intention was to move to Ireland on a long term basis.

14. In or about December, 2008, the parties decided that they would come to Ireland. The applicant’s case is that he

committed himself to being in Ireland for at least the period of the Christmas holidays, roughly a six week period, during

which time he would continue to receive an income from home. In this period he hoped he would be able to discover if he

enjoyed Ireland, and the respondent and himself would be able to asses employment opportunities here. He says that if

this did not work out that the agreement was that they would return to Australia after the six week period. I think the

joint plan actually went further than that, as is shown even by the applicant’s own affidavit. The evidence is that both

parties intended to spend a significant period of time here, perhaps up to a year.

15. The applicant says that he would be the primary care-giver during the period in Ireland, that he might obtain

employment teaching casually, and that the respondent would seek employment once R. was no longer completely

dependent upon her. He had organised the extended period of parental leave without pay from his Australian teaching

position during 2009 so that it would be possible to stay in Ireland for a longer period assuming that all went well. He says

this leave was flexible and allowed him to resume work with no more than one month of notice. He states that he also had

the option of returning to part time work while fulfilling any parental responsibilities.

16. To come to Ireland in December, 2008 the parties bought one way tickets. The applicant says these were expensive

but they wanted to travel to Ireland close to Christmas, and had no fixed return date in mind. He says that the

respondent had assured him that she had friends who worked in the travel industry in Ireland and that the tickets from

Ireland back to Australia would be significantly cheaper should they wait and purchase them here.

17. To travel to Ireland the couple obtained a passport for R.. The child is an automatic citizen of Australia because she

was born there. She also qualified for Irish citizenship because her mother was born in Ireland. Ultimately it was decided

that R. should have an Irish passport which would have the benefit that she would be able to travel between the

European Union countries without the need for a visa.

18. The applicant says that when they were leaving Australia they were asked at Immigration for R.’s Australian passport

for her outgoing journey. They were asked for their travel plans. It appears that the parties were permitted to travel with

R. on condition that they arranged an Australian passport for her before they travelled back to Australia. Since the time

that R. arrived in Ireland the respondent has not signed any application form for an Australian passport for R..

19. Even prior to December 2008, the relationship between the parties had become strained. The respondent went to a

psychologist on seven occasions. The applicant, too, went to a psychologist. It appears that the applicant had a

particularly unhappy relationship with the respondent’s psychologist. He complained to the relevant professional authority

that he had been “diagnosed” as having a ‘narcissistic personality disorder’ following a very short meeting with his wife’s

psychologist.

20. As notices to cross examine were served I had the opportunity of observing the demeanour of both the applicant and

the respondent. Clearly both are intelligent people. Both wish to enjoy custody of their daughter. Unfortunately they are

entirely at loggerheads as to how R.’s future can be resolved. During the period between the hearing and this judgment

there were difficulties even in relation to the issue of compliance with the terms for access which had been set by Finlay

Geoghegan J. in a preliminary order in this case, although matters later stabilised. It has been impressed upon the parties,

repeatedly, that friction of this type is not in R.’s interest. The parties have been unable to arrive at any accommodation

as to how the fundamental issue of custody is to be resolved between them. It is unfortunately necessary for this court

to make a clear decision.

21. The parties should realise that this decision is for the purposes of there being an ultimate legal framework as to

custody and access to R.. But it is for the applicant and respondent themselves to establish some form of relationship so

that R.’s best interests are protected. I do not think the parties have a sufficient realisation of the effect that ongoing

friction could well have on R. in the longer term. I formed the impression that the respondent was an intelligent person but

rather diffident. The applicant by contrast had little difficulty in setting out in great detail his concerns, and his

determination that R. should return to Australia so that he could enjoy custody or access rights to her. While courts may

deal with a legal issue such as custody, it is ultimately a matter for the parties to work out some form of working

relationship.

22. The applicant deposes that he attended a psychologist in Australia because of anxiety. He says that the anxiety

which he suffered was derived from the fear of not being able to be the “fulltime, permanent carer of R., should C.’s and

my relationship not improve”. It appears that it was the intention of the parties to seek marriage counselling once they

arrived in Ireland. The applicant says that the respondent made assurances of mother, father and daughter returning to

Australia if things did not work out in Ireland.

23. At the time of this hearing the parties’ rented family home in Australia is retained by the applicant’s mother. A

significant part of their personal belongings have been placed in the garage of that residence. The applicant says that all

of their other belongings were left in the house. His mother moved in after her own marriage came under strain. The

premises are rented, and the applicant’s mother signed a three month lease to allow him to take over the tenancy.

24. When the parties left Australia on 16th December, 2008 and arrived in Cork on the following day, they stayed at the

respondent’s parent’s house. Residing there were the respondent’s parents, F. and H. W. and her brother F..

25. The respondent denies that the period of their visit to Ireland was to be for six weeks only. She says that it was

never intended that they would return to Australia in less than a year after they came here, or that their staying in

Ireland was dependent on the applicant being happy here. She says in her affidavit:

“When we finally made the trip in December, 2008, it was intended to be relocation for at least a year and in fact

the applicant took leave of absence from his teaching post in Australia for a period of one year from Christmas

2008 until after the Christmas break in 2009/2010.”

26. When the parties left Australia they were clearly planning on being gone for a considerable period of time. The

respondent says that in fact they actually had cancelled the lease on their rental home and as most of their furniture was

second-hand they had intended to hold a garage sale. She says that in fact the real reason why the applicant’s mother

decided to take up residence in their rented accommodation was because Mrs. S. Snr. had decided to separate from her

husband. The parties left some remaining second-hand furniture in Australia. This comprised an old sofa, two old beds and

a washing machine. When the parties arrived in Ireland the respondent’s mother had purchased a cot for R.. They were

also given two car seats, a high chair, clothes and a large amount of toys and books for R. when they arrived here. The

respondent also states that she posted personal belongings to Cork on 17th November and 16th December, 2008. This

included ‘interview clothes’ for the applicant. The applicant sold the family car prior to their departure.

27. While the applicant was in Ireland he became involved in a fracas with the respondent’s brother and two other men in

a public house. The circumstances are not material to this application. But relationships became even more strained

between the applicant, his wife and her family. In early January, 2009 the issue arose as to where the parties were going

to live. The applicant based himself with the respondent’s sister in Carrigaline, Co. Cork from 3rd January to 27th January,

2009. The applicant says he was denied access save at the respondent’s family residence. The applicant says he asked

the respondent to return to Australia on the 12th January or thereabouts, but the respondent refused, saying she had

resolved to seek a divorce. During this time they also attended one unsuccessful marriage guidance counselling. He says

the respondent said neither she nor R. would return to Australia, although this is disputed. The respondent says that at

this point the applicant changed his mind about remaining in Ireland himself. She says that he changed his mind about

consenting to R. and herself staying in Ireland for up to a year. The applicant says that he asked for a marriage mediation

process scheduled for 21st January to be postponed. He intended then to return to Australia to seek legal advice. Having

spent one week in Paris, on 2nd February, 2009 the applicant returned to Australia on his own. At the time of departure it

appears the parties were on relatively amicable terms. I do not think the applicant consented to R. remaining in Ireland

rather that he accepted the situation pro tem. While he sent texts and messages to the effect that he would not seek to

compel the respondent and his daughter to return to Australia his true attitude is shown by his application to the Central

Authority on 13th February, 2009.

28. The only two issues which the court must decide are those of “habitual residence” and “consent”.

29. The respondent says that it is not possible for her to return to Australia because she has no resources or income, no

support in Australia and would be both homeless and financially destitute were she to return there. Moreover she says

that her right of residence in Australia was based on having a temporary partner visa which status was granted to her on

17th July, 2008. She avers that a wait of approximately two years is necessary before a permanent visa would be issued

by the Department of Immigration and Citizenship in Australia. She says she does not currently have a valid visa to return

to Australia and has received advice from the Australian High Commission that it would be difficult for her to obtain a visa

to enter Australia unless she secured a visa which would necessitate her working full time. She says that it would be

catastrophic for her daughter to be returned to Australia without her. Clearly there must be very close links between a

mother and a fourteen month old child.

30. Whilst in Ireland the applicant did apply for teaching jobs in schools or institutes of technology. In one letter

addressed to Scoil Stiofain Naofa in Cork he wrote:

“To whom it may concern

I am writing to you regarding the possibility of employment within your organisation.

My name is A.S. and I am 29 years old. I have just relocated from Australia to live permanently in Ireland as my wife

and daughter are Irish.”

He outlined his Curriculum Vitae, background in sport and his willingness to address any issues which a prospective

employer might have regarding his suitability for employment. Clearly the content of this letter must be taken into

account. The question really is how seriously this statement was meant. Many things are said in jobs application letters.

Not all of them are accurate.

31. The parties decided to undergo some marriage counselling in Ireland. It did not work out. The respondent says that in

or about 14th January of 2009 she was informed by the applicant that he wanted to go back to Australia in a

circumstance where he wanted to “grieve for” the marriage. The applicant sent emails after he returned to Australia

which might indicate that he intended to return to Ireland for the purposes of mediation. Some text messages might have

conveyed that the applicant did not at that time intend to force R.’s return to Australia. But matters changed rapidly.

32. I take into account also that the applicant’s brother and sister-in-law gave the parties a book for R. before leaving

Ireland with a message written on the front inside cover, inscribed:

“Dear R., Happy first Christmas. A book to learn about where you came from while you are living in Mummy’s

country.”

At best I think this is equivocal evidence. Since the time the applicant returned to Australia he has not in fact resumed

his employment but has continued studying. At some point prior to 6th April, 2009, the respondent withdrew her

application for permanent emigration to Australia. This application has now been finalised as ‘withdrawn’. As a parent of an

Australian citizen she remains eligible for an Australian visa.

33. At the time of this hearing, I do not think the applicant has made sufficient arrangements or even sufficiently

envisaged what might be necessary were the respondent to return to Australia with R.. While the applicant appears to

envisage the possibility that of necessity he, and he alone would take R. back to Australia with him I think that that idea

is both unrealistic and unwise. It would certainly not be in R.’s best interests that she be deprived of the company and

care of her mother at this young age.

Findings of fact

34. Insofar as the determination of habitual residence is a fact based test I find the following.

(i) The test which is to be applied is “child centred” in the sense that it is for the court to determine what was the

state in which the child was habitually resident immediately before the act of removal or retention which is

impugned.

(ii) From the time of her birth until 18th December, 2008, R. was resident, and therefore habitually resident in

Australia.

(iii) R.’s father is an Australian citizen.

(iv) The parties were married in Australia.

(v) R. is entitled to an Australian passport as well as Irish by virtue of her Australian birth.

(vi) The total period of time that the parties lived together in Ireland was less than one month, i.e., between 18th

December, 2008 to 3rd January, 2009.

(vii) The evidence undoubtedly establishes that the parties’ intention was to reside outside Australia for a

significant period. It was the intention that one or other or both of the parties would obtain employment in Ireland.

(viii) On balance, I find the evidence does not establish that at any time both the parties established an intention

to reside in Ireland on a long term continuous basis. Insofar as there was a formed common intention, I think it was

that the parties would reside in Ireland for approximately one year.

(ix) Even on the broadest interpretation, the detention of the minor cannot be dated later than in or about the 12th

January, when the respondent denied access save at the W.’s house. At the outside, detention commenced on

27th January when the applicant left Ireland alone.

(x) There is evidence that the applicant led the respondent and the W. family to believe that he would be returning

to Ireland. By inference I think that the applicant having obtained legal advice in Australia determined that he would

“stand on his rights” rather than returning to Ireland with the intention of seeking to resolve the relationship.

35. The applicant left Ireland to return to Australia on 27th January, 2009. He was therefore in Ireland for little more than

one month. The applicant and respondent lived under the same roof for no more than three weeks. Can habitual residence

be established on this basis?

Habitual residence

36. In A.S. v. M.S. [2008] 2 I.R. 841, Finlay Geoghegan J. observed:-

“32. Habitual residence is not defined in the Hague Convention. Its meaning for the purposes of the Convention, as

implemented in the State by the Child Abduction and Enforcement of Custody Orders Act, 1991, was considered in this

Court by McGuinness J. in C.M. v. Delegación de Malaga [1999] 2 I.R. 363. In that judgment McGuinness J. reviewed a

number of Irish and English authorities and then stated at p. 381:

‘Having considered the various authorities opened to me by counsel, it seems to me to be settled law in both

England and Ireland that ‘habitual residence’ is not a term of art, but a matter of fact, to be decided on the

evidence in this particular case. It is generally accepted that where a child is residing in the lawful custody of its

parent (in the instant case the mother), its habitual residence will be that of the parent. However, the habitual

residence of the child is not governed by the same rigid rules of dependency as apply under the law of domicile

and the actual facts of the case must always be taken into account. Finally, a person, whether a child or an adult,

must, for at least some reasonable period of time, be actually present in a country before he or she can be held

to be habitually resident there.’”

37. In A.S. v. M.S. the judge had to consider a situation where the child had lived for its first seventeen months in Poland

and was habitually resident there when it left Poland for England in July 2005. The issue which had to be determined was

whether notwithstanding her physical absence from Poland from July until September 2005, she remained, as a matter of

fact, habitually resident in Poland in September 2005.

38. But the judge quoted with approval the statement of principle by Lord Brandon in the case of Re. J. (a minor)

(Abduction) [1990] 2 A.C. 562 where he observed as to habitual residence at p. 579:-

“In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first

point is that the expression ‘habitually resident’, as used in article 3 of the Convention, is nowhere defined. It

follows, I think, that the expression is 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. The second

point is 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. 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 the 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.”

In A.S. Finlay Geoghegan J. observed of this passage:-

“38. I would respectfully agree with the above approach, subject to one clarification which I believe to be implicit

in the fourth point. Lord Brandon does not appear therein to be applying any rule of law, but rather stating the

inevitable factual conclusion, from the age of the child and the fact that he is in the sole lawful custody of his

mother, that (in the absence of exceptional circumstances) a young child in the sole lawful custody of one parent

will continue to live with that parent for the foreseeable future and hence have the same habitual residence as the

parent.”

39. The parties here are entitled under Australian law to joint custody. R.’s present custody is de facto and not de jure. I

do not accept that on the evidence it could be said the child was habitually resident in Ireland. There was no long term

continuity to the residence. Her parents cohabited only very briefly here. If the point of wrongful detention is from mid

January, 2009 the family were in the country just one month at a time when the applicant had by no means abandoned

his ties to home. Even if R. had ceased to be habitually resident in Australia she had not become so in Ireland.

40. The time in question here is certainly not “appreciable”. R. is not in her mother’s sole lawful custody. Looked at

another way, the issue which this Court must determine is whether there existed a joint settled intention that the child

should not return to Australia, at least in the foreseeable future, and instead should take up residence in Ireland. I am not

convinced that the evidence establishes even this. The unilateral intent of one parent does not establish a joint settled

intention. There is evidence that the hope and aspiration of the respondent was that she would return to Ireland. She

may well have hoped that the applicant would join her in this intention. But looked at objectively, I think the evidence

only establishes that the applicant was simply prepared, in the colloquial sense to “give it a go” in Ireland, but that at no

time did he abandon his long term intention to reside in Australia. He did not break his ties with that country. He did not

give up his job completely or resign from it. Both parties retained some at least of their household goods in Australia,

although they bought others here. Insofar as there was a joint common intention, the parties may have agreed that they

would not live in Australia for a significant period, but this does not establish that they intended to set up a joint

residence in Ireland on a continuous basis. Certainly the material does not establish that they resided here in such a

manner as to be “settled”. The fact that the child has been resident in this jurisdiction since December 2008 does not

alter the situation in any way. The point for the court to decide is the habitual residence of the child prior to the date of

the alleged wrongful retention rather than after it. I hold that the habitual residence of the child is New South Wales.

Consent

41. I turn now to the issue of consent.

In A.S. Finlay Geoghegan observed:-

“Counsel for both parties were in agreement as to the applicable law in relation to an alleged consent to the

retention of a child out of her country of habitual residence. In R. v. R. [2006] I.E.S.C. 7, the Supreme Court, in

the judgment of Denham J., affirmed that the relevant principles to be applied by this Court in considering an

alleged consent to the retention of a child away from the country of his or her habitual residence are:-

‘(i) the onus of proving the consent rests on the person asserting it; and

(ii) the consent must be proved on the balance of probabilities; and

(iii) the evidence in support of the consent needs to be clear and cogent;

(iv) the consent must be real; it must be positive and it must be unequivocal;

(v) there is no need that the consent be in writing;

(vi) it is not necessary that there be proof of an express statement such as ‘I consent’. In appropriate cases

consent may be inferred from conduct but where such is alleged it will depend upon the words and actions of the

allegedly consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other

parent.’”

42. The onus then is on the respondent. I do not think any evidence which has been elicited by the respondent is

sufficient to demonstrate as a matter of probability that her husband consented in the sense as defined to R.’s detention

outside Australia. The evidence is not clear and cogent, positive or unequivocal. At best the matter was unresolved. The

evidence, if anything, establishes that the parties agreed that the marriage was not going to survive in January 2007. But

that was not, in my view, tantamount to the applicant consenting to R. being retained in this jurisdiction. In that sense

there was no real positive or unequivocal consent. Nor do I think there are any words or conduct from which consent to

habitual residence could be inferred.

Findings

43. I therefore make the following findings:-

1) That R.’s habitual place of residence continued to be Australia.

2) That it has not been established the applicant consented to her residing in Ireland.

3) It follows therefore that an order should be made for her return to Australia in accordance with the Convention.

4) It follows therefore that no issue of discretion arises.

44. I reach this decision because I think it is necessary to give effect to the objects of the Convention quoted earlier.

45. I consider that there has been unlawful retention of the child, contrary to Article 3, of the Hague Convention, in the

light of the fact that at the time of retention, the applicant’s rights to custody jointly were actually being exercised and

would continue to have been exercised but for what occurred.

46. I am also having regard to Article 12 of the Convention which provides that:-

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the

commencement of the proceedings before the judicial or administrative authority of the contracting State where

the child lives a period of less than one year has elapsed from the date of the wrongful removal or retention, the

authority concerned shall order the return of the child forthwith.”

47. While other considerations might arise after the expiration of a period of one year, such as the concept of

“settlement”, this has not been established here. I do not think that there is any evidence that the applicant was not

exercising custody rights at the time of retention.

48. Although there were some psychological reports among the papers as exhibits, the issue as to whether there is grave

risk has not been pursued in court, consequently any exceptional circumstance such as envisaged in article 13 of the

Convention does not arise. While I have real concerns with regard to the state of the relationship between the parties, no

issue has been argued as to the child being placed in grave risk.

Other authorities

49. In making this decision I have had regard to a number of authorities which have been further brought to my attention

by counsel for the respondent in her succinct submission. In Re. B. (Minors) (Abduction) (No. 2) [1993] 1 F.L.R. 993,

makes clear that domicile and habitual residence are essentially different concepts. I think that has been made sufficiently

clear in the course of this judgment. Re. B was a case where the parties moved to Germany in order to “provide a base

for reconciliation and for planning a fresh start.” The purpose was a settled one and despite the father’s impatience at its

failure and private resolve to bring it to an end, it remained a settled purpose in the judge’s view right up to the time

when the mother came to England for what she supposed to be a short holiday. But this was not the case here. I do not

think that the evidence in any way supported the proposition that Ireland was to provide a base for reconciliation and for

planning a fresh start. It was perhaps a sojourn, but it was not (at least in the joint intention of the parties) a settled

intention. Re. F. (a Minor) (Child Abduction) 548, illustrates that even within a very short time between departing from

one State and arriving at another, habitual residence may be established if the evidence demonstrates that there was a

joint common intention to acquire or establish habitual residence. This may occur even within a very short time. However

again I do not consider this situation is established on the evidence in this case.

50. Re. R. (Abduction); Habitual Residence [2003] E.W.H.C. [2004] I F.L.R. 246, establishes that the test for habitual

residence is whether the residence was for a settled purpose which might be either of short duration or conditional upon

future events. That authority emphasises too, the distinction between habitual residence and domicile. Re. S. (Minors)

(Abduction); Wrongful Retention [1994] 2 W.L.R. establishes that where a parent announces that she does not intend to

return children to State A, that parent can no longer rely on the father’s agreement to a limited period of removal or

retention as protecting the parent asserting change or residence. In the instant case I do not think that it is open to the

respondent to rely on any period of time that elapsed after the applicant left Ireland as being in anyway amounting to

acquiescence.

51. I have also been referred to the decision of the Court of Justice (3rd Chamber) 2nd April, 2009, in Case C – 523/07

Reference for a Preliminary Ruling under Articles 68 E.C. 234 E.C. from the Korkein Hallintoiokeus (Finland) made by

decision of 19th January, 2007. The case establishes that insofar as applicable the “habitual residence” of a child within

the meaning of Article 81 of Council Regulation No. 2201/2003 is relevant in that it may reflect principles very similar to

those discussed earlier, insofar as relates to this case. Habitual residence of the child within the meaning of Article 81 of

that regulation must be established on the basis of all the circumstances specific to each circumstance to each individual

case. In addition to the physical presence of the child in a member state other factors must be shown which are capable

of showing that the presence is not in any way temporary or intermittent and that the residence of the child reflects

some degree of integration of a social and family social and family environment. I do not think that these principles even if

they were applicable in this, Hague Convention case, are significantly different in their application from those which have

been placed before the court.

52. I reiterate one final word. A legal decision upheld cannot detract from the fundamental reality that wherever litigation

is conducted, there will come a time when the parties must work out a modus vivendi in R.’s interests. The experience of

every family lawyer demonstrates that with time, matters very often reach a degree of stability. But before that time is

reached, damage can be caused to a young child. This may not be the parties’ intention, but it can be the effect.

53. I have concluded that the place where these issues must be resolved is Australia. But no observation of mine is in any

way binding on a court in Australia as to what arrangements it makes in relation to custody or access. The decision which

is made here is as to the State where these issues must be determined, but this decision does not identify where R.

should necessarily live in the future whether, temporarily or permanently. That is a matter to be decided elsewhere.

54. I will hear counsel on the terms of compliance with the order and the arrangements which must be made in R.’s

interests to give effect to the order. Clear, concrete, arrangements both as to custody, access, accommodation, and

subsistence, should be put in place in New South Wales for the protection of R.’s interests and welfare prior to the order

coming into effect.