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d. If the application was filed in Australia more than one year after the removal date
and the child was settled in Australia, did he still retain a discretion to return the
child and, if so, how should that discretion be exercised?
SIGNIFICANT JUDGMENTS Part 5
The mother argued the parents had always intended to live in Australia and their stay
in the United States was intended as a holiday. The father argued to the contrary,
providing evidence the mother had sought permanent residency in America. There was
no evidence that the parties had discussed returning to live in Australia.
The child be returned to the United States of America.
1. The question of habitual residency is not a question of domicile. One must look
to mutual intent of the parents to determine habitual residency. De Lewindsky v
Department of Community Services (1997) FLC 92-737 followed, which held that ‘the
habitual residence of young children is the same as the habitual residence of the
parents and neither can change it without the consent of the other or order of the
court’ and it is ‘a place adopted voluntarily and for settled purposes’.
2. The father’s evidence that the parties intended to live in the USA was accepted and
the child was thus habitually resident in the USA.
3. In relation to the relevant time for the ‘date of removal’, his Honour followed his
decision in State Central Authority v Ayob (1997) FLC 92-746. The critical date is the
date the child is removed from his/her place of habitual residence and not the date
the child arrived in Australia.
4. ‘The time for determining when the wrongful removal took place was to be
measured according to the time at the place where the wrongful removal occurred,
namely California.’ As the American frontier was not crossed until some time on
21 July 2004, the application of 21 July 2005, was brought within one year of the
wrongful removal.
5. As questions (a) and (b) were answered in the affirmative and as the appropriate
time where removal occurred is to be measured from the place of wrongful removal,
the child must be immediately returned to America.
6. Question (d) considered in obiter dicta:
If the application had been made more than one year after the day on which
the child was first wrongfully removed from his place of habitual residence,
it would be necessary to consider whether the child had settled in his new
environment.
Following Secretary, Attorney-General’s Department v TS (2001) FLC 93-063, ‘the
onus lies on the mother to establish the proposition that the child is settled
in his new environment. I do not regard this as a particularly heavy onus but
simply the establishment of an issue of fact determined on the balance of
probabilities.’
For a young child who is attached to his mother (as in this case), it is necessary
to consider also whether the mother is settled in her new environment and how
the child is cared for in that environment.
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Family Court of Australia Annual Report 2005–2006