In Hague Convention proceedings involving children allegedly abducted overseas by a parent, our family court must determine a child’s “habitual residence”. What does this mean? And what should Australian parents bear in mind if they are contemplating moving to another jurisdiction with their partner and children?
Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction are given effect by the Family Law (Child Abduction Convention) Regulations 1986 (the Regulations). The Regulations only apply when a child’s retention across international borders is determined to be “wrongful” according to numerous pre-requisites. Apart from factors such as that the child’s retention was in breach of the left-behind parent’s custody, the Regulations specify that the child must be found to have “habitually resided” in the country they were allegedly removed from.
There are five exceptions to return, including if there is a grave risk that returning the child would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
A recent case, pseudonymised as Department of Communities and Justice & Bamfield, involved a Belgian father and Australian mother. The mother had brought their 7 month old daughter to Australia under pretences of a holiday and then retained the child here. The child had lived in Belgium since birth. The father successfully brought proceedings (which is done via the Department in these cases) and the child is now to be returned to Belgium. The family court found the child was habitually resident in Belgium and that returning there would not cause an intolerable situation for the child. Let’s take a look at how the courts handle a case like this.
How is habitual residence determined?
The law on determining habitual residence has been settled authoritatively by the High Court of Australia. There are essentially two parts to the test applied by the courts. Firstly, what were the parents’ intentions and secondly, is the period of time the child spent in a particular country “sufficiently appreciable” to justify finding the child was habitually resident there.
When it comes to intention, the courts will look at whether this was voluntary and a “settled” intention on living where they do.
What if parents’ intentions are different?
There is a question as to how the law should deal with cases where the intentions of one parent may be described as “settled”, but the other parent’s intentions are not. Since each parent has an equal right to fix the child’s place of residence, if there is a ‘genuine difference’ in parents’ intentions, then the court will conclude there is no settled intention.
Here, the court ruled that “at best, the mother’s intention to make Belgium her home cannot, on the evidence, be regarded as higher than ambiguous.”
However, while looking at parents’ intentions a relevant consideration, determining habitual residence isn’t only about the parents’ physical presence and intention and it was pointed out that “intention is not to be given controlling weight” in these matters.
In order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”. This is not fixed and depends on the circumstances of each case. It’s really all about the context. For instance, the court mentioned a case where a family acquired a new habitual residence just one month after arriving in a new country. As they both intended to emigrate, that “settled intention” meant even a month can be an appreciable period of time. As the time period is not fixed, what is crucial is finding a “strong and readily perceptible link” between the child and the country where they are said to be habitually resident. It’s about showing that the child has a “real and active connection with that place”.
In this particular case, the child spent all her seven months in Belgium, a relatively appreciable period for the infant. Aside from this, the court found the girl was connected to Belgium in numerous ways:
“X was as connected with life in Belgium as any seven month old child could be. She will return to a country in which she was born. X and her mother will reside in a home which is jointly owned by the mother in close proximity to the home of X’s paternal grandparents with whom the father is likely to reside.”
As to the matter of the parents’ unsettled intentions, the court noted:
“The indecision of the parents does not [prevent the child from] becoming habitually resident. The parents’ relationship with Belgium is in no way transitory or temporary. The father is employed there. The father’s extended family are in Belgium. The parent’s own real property in Belgium. Through these things [the child] is connected with Belgium.
While the mother’s intentions were found to be ambiguous,
“The mother’s contention is, in effect, that because she was not happy in Belgium and content to reside there, their daughter is without a place of habitual residence. If accepted, that elevates the importance of parental intention to a level much higher than that countenanced by the High Court or the Full Court.”
As such, despite the ambiguity of the mother’s intention, the court found the child is sufficiently connected with Belgium for it to be regarded as her place of habitual residence.
No grave risk of intolerable situation
The mother identifies as a member of Australia’s First Nations People and submitted that returning the child to Belgium would place her in an intolerable situation, because the Belgian courts are not attuned to Aboriginality in the way that our courts are. But the mother was unable to convince the court that this would amount to an “intolerable situation”.
While it’s true that our courts, thanks to the sections in the Family Law Act that deal specifically with Aboriginality, “may place greater significance on a child’s Aboriginal culture” than the Belgian courts, this did not mean that the child’s Aboriginality would be given insufficient or no weight. The judge here said:
“I accept that the mother is concerned about the lack of emphasis which the courts in Belgium might place on [the child]’s Aboriginality. However, my impression is that that the mother’s real grievance is that she perceives she may receive a less favourable outcome in Belgium than that which she would receive if she were to be permitted to prosecute her case for relocation and other parenting orders before our Australian courts. With respect, that does not meet the test of intolerable situation”.
The court determined this was a “blatant case of repudiatory retention” and “a clear instance of wrongful retention” and have fielded the matter back to the jurisdiction of Belgium to determine resolution of the parenting matters.
Going overseas to work on a marriage
It’s worth noting that when determining if the parents’ intentions are “settled”, if a party’s purpose in relocating was to “work on the relationship” this does not automatically mean the intentions were not settled.
“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”.
And a takeaway…
The judgment mentions something we think it’s worth noting when it comes to parents considering an international relocation:
“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…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.”
You can read this judgment in full here.
If you need assistance with a parenting or other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.