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Department of Communities, Child Safety and Disability Services & Lasko (No. 2) [2012] FamCA 941

Categories: Child Abduction, Hague Convention, International Relocation, Relocation
Tags: , , , , ,

the outcome
That both the children be returned to the country of Cyprus.




Judge Name: Forrest J
Hearing Date:
Decision Date:09/11/2012
Applicant: Director-General, Department of Communities, Child Safety and Disability Services
Respondent: Ms Lasko
Solicitor for the Applicant: Crown Law
Counsel for the Applicant: Mr Hamwood with Ms Oakley
Solicitor for the Respondent: R A Solicitors
Counsel for the Respondent: Mr Foley
File Number: BRC 5926 of 2012
Legislation Cited: Convention on the Civil Aspects of International Child Abduction [1987] ATS 2 (entered into force generally on 1 December 1983)
Family Law (Child Abduction Convention Regulations) 1986 (Cth)
Family Law Act 1975 (Cth)
Cases Cited: Department of Communities (Child Safety Services) v Garning [2011] FamCA 485
LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
SK v KP [2005] 3 NZLR 590
State Central Authority & Camden [2012] FLC 93-501at [38]
Zenel v Haddow [1993] S.L. T 975
Zotkiewicz & Commissioner of Police (No 2 (2011) FLC 93-472
Jurisdiction: Family Court of Australia
Parental Responsibility Outcome: Not Relevant
Residential Outcome: Not Relevant


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Orders

The Orders made by the Honourable Justice Kent dated 20 July 2012 are discharged.

(2)That the children,C NOARA born … September 2005 and B NOARA born … September 2005, be returned to the country of Cyprus and for the purposes of giving effect to this order:

The said children leave the Commonwealth of Australia not before midnight on Sunday, 25 November 2012;

(b)The said children arrive in the country of Cyprus before midnight on Sunday, 2 December 2012;

(c)Pending the said children, C NOARA born … September 2005 and B NOARA born … September 2005, returning to Cyprus, the respondent mother, MS LASKO, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;

(d)Pending the return of the said children,C NOARA born … September 2005 and B NOARA born … September 2005, to Cyprus, the respondentmother, MS LASKO, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said children,C NOARA born … September 2005 and B NOARA born … September 2005, from the premises where MS LASKO and the said children are currently residing namely, … G Street, SUBURB L, QLD, … ;

(e)Subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondentmother, MS LASKO and the said childrenC NOARA born … September 2005 and B NOARA born … September 2005, on the All Ports Watch Alert System at all international departure points in Australia;

(f)The said children,C NOARA born … September 2005 and B NOARA born … September 2005, and the respondentmother, MS LASKO be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services, Department of Communities, Child Safety & Disability advising of the travel arrangements made for the said child to return to Cyprus, from 12.00 am on the date nominated for the said travel in the letter;

(g)The Marshal of the 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 various States and Territories are required and empowered to take all necessary steps to give effect to these orders;

(h)To facilitate the return of the said children, C NOARA born … September 2005 and B NOARA born … September 2005, to Cyprus, the Department of Communities, Child Safety and Disability Services or their nominee be at liberty to release all current passports relating to the children for the purposes of the said children’s return to Cyprus; and release the respondent mother’s, MS LASKO, passport to her or her nominee upon request;

(i)The respondentmother, MS LASKO, pay all the necessary expenses associated with returning the children to Cyprus, including the cost of airfares and departure taxes (if any) for the children to travel from Brisbane Airport to Cyprus, and in the event the respondent mother fails or refuses to pay these expenses; the respondent mother pay to the applicant the necessary expenses incurred by or on behalf of the applicant and MR NOARA, in returning the children to Cyprus, within two (2) business days of the applicant making a written demand for reimbursement of the said expenses.

(3)That there be liberty to apply.

(4)That all other applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Lasko has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Introduction

On the 28th June 2012, the Director-General of the Queensland Department of Communities, Child Safety and Disability Services filed an application initiating proceedings under the Family Law (Child Abduction Convention) Regulations 1986 (“the Hague Regulations”). These regulations enable the performance of Australia’s obligations under the Convention of the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Hague Convention”).

The Director-General is the responsible Central Authority in the State of Queensland as that term is defined in the Hague Regulations.

By this particular application, the State Central Authority applies for orders that the children, C Noara (“C”) and B Noara (“B”), both born … September 2005, be returned to Cyprus.

Brief Background facts

The respondent mother is Ms Lasko (“the mother”). She was born in Australia in 1980. When she was 18 years old, her parents separated and her mother, who was from Cyprus, returned to Cyprus to live. The mother visited her mother in Cyprus in 1998 and began a relationship with a Cypriot, Mr Noara (“the father”), whilst staying there. The mother decided to stay in Cyprus to be with him.

Her evidence is that he became involved in a football supporters’ group and was heavily using drugs and alcohol and getting involved in violence. The mother ended her relationship with the father and returned to Australia in 2002. She found employment and developed a passion for Sport D. She travelled to Canada in 2004 and then visited Cyprus on her way home, renewing her relationship with the father whilst there, although she asserts, he was still heavily using drugs, including cocaine. In November, 2004, the mother, accompanied by the father, returned to Australia.

Upon their arrival in Australia, the mother learned that she was pregnant with the twins. The couple decided to marry and did that in Brisbane in June 2005. The father applied for permanent residency in Australia and undertook employment in the building industry, as he is a tradesman. The twin girls were born in September 2005.

In March 2006, the couple travelled to Cyprus to baptize their daughters in a church in the father’s home village. They then had a formal wedding ceremony there in September of that same year. In December 2006, the mother separated from the father, alleging he was still heavily using drugs, and took the girls to live with her mother. She was working to support herself and the girls and soon decided to return to live in Australia. The father told her he supported that decision and would relocate himself to Brisbane also.

The couple and their children returned to Brisbane in August 2007. They rented a home together, apparently reconciling, and both obtained work, the father setting up his own small business. Soon thereafter, the mother ceased employment and became involved in full-time parenting and home duties for the family. In 2008, they bought a home at Suburb R.

Their relationship began to deteriorate again and in January 2009, the mother took the children and moved back to the home owned by her family at Suburb A. In April that year, she and the girls moved back in with the father and stayed living with him for the rest of that year.

The mother’s interest in Sport D continued. She wanted to enter a major Australian competition in Sport D. The father did not want her to participate and told her so.

According to the mother’s evidence, a January 2010 disagreement about her entry in this competition turned into an argument and then into a horrific incident of domestic violence. The mother gives evidence that the father took up a can of petrol and splashed some on the veranda of their home near her feet, before making a trail of petrol into the house. She says he then lit the petrol with his cigarette lighter and that smoke billowed from the fire. The mother says that her brother, who was staying with them at the time, ran to her and removed her from the property, taking her back to his place. The mother says she believes the father put the fire out after she and her brother left and that there was no actual damage done to the inside of their home.

The mother’s evidence is that she then left with the girls and went to stay with her mother again in Cyprus. She maintains that she only went for a temporary stay in Cyprus and that soon after she and the girls arrived there, the father turned up unannounced at her mother’s home. She says he told her that he had sold their home in Brisbane and all of their possessions and had relocated back to Cyprus. They did not reconcile and continued to live apart.

The mother says she then faced the reality of having nothing to go back to in Australia, having no funds to pay for her trip back and an inability to get government support from the Government of Cyprus. She obtained employment in a town some distance from her mother’s place and moved with the girls to that place. She entered into a 12 month lease on a rental property and she commenced a new relationship with another man. The father also commenced a new relationship with another woman.

The girls spent time with their father, although the extent to which that occurred is in dispute. The mother obtained a divorce from the father in Cyprus in May 2011. She won a major competition in Cyprus in Sport D in 2010 and in 2011.

The mother left Cyprus with the twins and returned to Brisbane on 27 January 2012. She says it was with the father’s knowledge and permission. The father says it was a unilateral move by the mother made without his knowledge and consent. The mother and the two girls have been in Australia ever since. The father remains in Cyprus and seeks the return to Cyprus of the two girls through the application of the provisions of the Hague Convention and the Hague Regulations.

There is much dispute between the couple as to some of the factual matters each asserts in their affidavit material. Each of them was cross-examined: the father by telephone from Cyprus with the assistance of a qualified Greek-English interpreter provided by this Court, the mother in person in the Court room here.

At this point in these reasons, I consider it appropriate to record that I do not accept the truthfulness of the father on some aspects of his evidence and I do not accept the truthfulness of the mother on some aspects of her evidence. I shall return to these matters where relevant later in these reasons.

Consideration of the Application pursuant to the Regulations

The State Central Authority applies for a return order under regulation 15 of the Hague Regulations. Sub-paragraph (1) of that regulation gives the Court the power to make a return order, to make any other order that it considers appropriate to give effect to the Hague Convention and to include in any such order a condition that the Court considers to be appropriate to give effect to the Convention.

Regulation 16(1) mandates a return order in certain circumstances. If the Court is satisfied that an application for a return order is made and has been filed within one year after the children’s removal or retention and the Court is satisfied that the children’s removal or retention was wrongful under sub-regulation (1A) of regulation 16, then the Court must make the order returning the children. This mandatory return is made subject to discretion not to order the return of the children if the person opposing the return establishes one or more of the matters prescribed in sub-regulation (3) of regulation 16.

In this case, the application for a return order has been made within one year of the children’s removal to Australia.

The State Central Authority will satisfy the Court that the children’s removal from Cyprus to Australia was wrongful under sub-regulation (1A) of regulation 16 if certain prescribed criteria are met. In respect of those criteria, there is no dispute between the State Central Authority and the respondent mother that:

the two children are under 16 years of age (regulation 16(1A)(a)); and

Cyprus is a convention country (regulation 16(1A)(b)).

There is dispute as to whether the children habitually resided in Cyprus immediately before they were removed to Australia (regulation 16(1A)(b)) and as to whether the father had rights of custody in relation to the children under the law of Cyprus immediately before they were removed to Australia (regulation 16(1A)(c)).

Were the children habitually resident in Cyprus immediately before they were removed to Australia?

 

Counsel for the respondent mother submitted that the evidence does not establish that the children were habitually resident inCyprus immediately before their removal to Australia in late January 2012. He submitted that the material falls far short of establishing “a voluntary, settled intention for the children to reside in Cyprus habitually”.

To determine if there is merit in that submission, I turn to a consideration of the applicable legal principles and the evidence before me.

As the Full Court of this Court recently confirmed, the law concerning the process by which a child’s place of habitual residence is determined has been authoritatively settled by the High Court in LK v Director-General, Department of Community Services. In that joint decision of five of the judges of the High Court, their Honours accepted that the inquiry into “habitual residence” is a broad factual inquiry. In doing so, they approved the following passage from the decision of the New Zealand Court of Appeal in Punter v Secretary for Justice [2007] 1 NZLR 40:

Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state an to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP [2005] 3 NZLR 590 held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override ….. the underlying reality of the connection between the child and the particular state.

Their Honours said, at [22]:

The search must be for where a person resides and whether residence at that place can be described as habitual.

Their Honours appropriately observed that when determining the issue 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.” Relevantly, as their approval of the quoted passage from Punter demonstrates, their Honours also made it clear that determining the settled purpose of the parents is important in the process but not necessarily decisive. Their Honours explained this by acknowledging that individuals do not always act “with a clearly formed and singular view of what is intended (or hoped) that the future will hold.” They also acknowledged, importantly, that 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”. Their Honours went on to say, in this regard:

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.

Counsel for the mother, in his submissions, pointed out that the evidence establishes that the couple had in 2004/2005 determined to make Australia their home, for the twins to be born and raised here. He submitted that although they travelled to Cyprus as a family in 2006, they decided to move back to Australia in August 2007 where they lived until February 2010. He submitted that the mother fled from Australia to Cyprus with the children after the particularly fearful incident of domestic violence involving the pouring and lighting of petrol at the family home. He submitted that the mother did not, in that process, abandon Australia as her habitual residence, and that she clearly intended to stay with the children only temporarily in Cyprus. Counsel’s submission was that the evidence in respect of the mother’s completion of the outgoing passenger cards for herself and the girls at that time confirms this and that the evidence of the mother’s brother that the mother told him that she and the children were going to go away for a while and visit the maternal grandmother in Cyprus also corroborates this.

In short, he submitted, the mother never abandoned Australia as her place of habitual residence and did not, even though she was in Cyprus with the children for just a few weeks short of two years, acquire habitual residence in that country. It follows, he submitted, that the children were not, therefore, habitually resident in Cyprus when they left there in the company of their mother in late January this year.

Relevant findings of fact

 

There is no dispute at all that the couple had determined to makeAustralia their home in 2004/2005 and for their children to be born and raised here. That said though, they then travelled to Cyprus in 2006 where they christened their children, formally married in a church and established family life there, apparently leaving Australia behind. Their relationship difficulties later prompted them again to return to Australia in August 2007 and they re-established family life here. That lasted until early 2010.

Although the father denies the mother’s allegations that he poured petrol near her and into their Brisbane house before lighting it sometime in December 2009/January 2010, I am satisfied that it happened as the mother alleges. I do not believe the father’s denials. The detail of the mother’s evidence about the incident, about which she was not cross-examined, the brother’s evidence about the incident, about which he was not cross-examined, the maternal grandmother’s evidence about the mother’s complaint to her about the incident, about which she was not cross-examined, the evidence that the couple’s relationship effectively finally ended after that time when the mother and children travelled to Cyprus, and the rather emotionless denials by the father, who simply says if he had done it he “surely would be in an Australian gaol now”, persuade me that it happened as the mother says it did. I do not believe the father’s denials.

The father deposed, in the first affidavit filed by him, to the mother having decided in February 2010 that it would be best for her and the children to move back to Cyprus permanently. In his oral evidence he said that they both decided together that she would go back to Cyprus with the children and that he would sell the home and go back as well. He then changed his ground a bit and said that the mother had decided on that course and that they then both agreed on it. I cannot say with any confidence that I accept the father’s evidence about this. Accordingly, I do not find that the mother decided to move permanently with the children back to Cyprus in early 2010.

In contrast, the mother wants the Court to accept that she only went for a temporary stay with her mother in Cyprus. Although there is some evidence, other than the mother’s own evidence, that supports such a finding; namely, the outgoing departure cards the mother completed as she left Australia and the brother’s corroborative evidence, I am not completely satisfied though that the mother’s intentions at that time were as clear and unambiguous as she would have the Court accept. She said in her first affidavit that she was overwhelmed by the father’s actions and longed for the support of her mother so she returned to Cyprus with the girls to stay with her mother and reflect. She said that she felt trapped there in Cyprus when the father turned up there having sold their home and possessions back in Brisbane when she only intended on returning to Cyprus for a short period. In her second affidavit, she says she intended to spend only 1 to 2 months in Cyprus, not to permanently relocate there. Nevertheless, she ended up staying there for almost 2 years and she again established family life there.

It may be that the mother did only intend on staying for a temporary but indefinite period of time in Cyprus when she went there. It may be that she intended on returning to live in Brisbane at some point in the future. However, Cyprus was not foreign to her. It had been her settled home before, on more than one occasion and for reasonably long periods of time. Whatever might have been her intent at the time she left Australia, I am not satisfied that her intent was other than that she would probably return with the children to live in Australia at some indefinite time in the future, with the prospect of her making a life for herself and the children in Cyprus, at least for the time being, not something that was totally out of the question in her mind. I am satisfied that her intentions were all in a state of flux at that time, having regard to the turmoil her relationship with the father had gone through and the horrendous conduct he had exposed her to. In this respect, as I have said, I am not satisfied that the mother’s plans or intentions were clear and unambiguous at that time. I am definitely not satisfied that she intended to return to Australia after only 1 or 2 months.

My lack of satisfaction on that point is magnified by the fact that the mother does not explain in any evidence how she was going to achieve her then stated intention. Nothing was said about ticketing or how she intended to fund her return and the return of the children at that time. I am satisfied that the father did not actually travel to Cyprus himself for a couple of months after the mother did, and that on her own evidence she did not learn that he had sold their home and possessions in Brisbane before he told her that when he unexpectedly turned up at her mother’s Nicosia home. There is no explanation offered by the mother as to why she had not already returned to Australia by then, having regard to her stated intention of only going for 1 or 2 months.

I am also satisfied that the father, knowing that the mother had separated from him again and gone back to Cyprus, moved there a few months after the mother to follow her and be near his children and his own family again, prepared to make his own life there again, at least whilst the mother and the girls continued to live there, thus in reality abandoning his habitual residence in Australia. He moved back to Nicosia, the same city the mother had gone to. I am reasonably satisfied that he would not have done that if he knew that the mother was only going to be there for a very short time before she and the children returned to Australia.

Although she says her intention was to return to Australia within a relatively short space of time, the mother deposes to the fact that she felt trapped in Cyprus. She deposes to having had “no funds or ability to return to Brisbane as [she] had nothing to return to.” She deposes to the fact that her mother could not financially support her and the children on an ongoing basis. She deposes to the fact that she was not able to obtain government benefits in Cyprus because she is an Australian citizen. The mother deposed to that fact but did not support it with any form of corroborative evidence. In fact, the evidence more recently filed by the State Central Authority shows that the mother had applied for a government benefit in Cyprus in April 2010 but that her application was rejected because of her lack of cooperation with the Cypriot authorities when seeking to process her claim. The mother was rather dismissive of that evidence in cross-examination, still asserting that it was because she was an Australian citizen she could not get a benefit and that she had been told that by someone with authority. She did agree though, and her recently filed evidence showed, that she had lodged an application in April 2011 for a review of the 2010 rejection of her application.

In any event, in the first part of 2010, the mother searched for and did manage to obtain employment in the town of Limassol, some distance from her mother’s place in Nicosia. She moved to that town and found her own rental accommodation. She signed a 12 month lease on that place, attributing that fact to knowledge that she needed to accumulate a nest egg before returning to Australia, giving her ample opportunity to save.

The mother’s employment was in a sport complex teaching Sport D. At around the same time, she formed a new relationship with Mr K. Remarkably, she did not mention him at all in her affidavit material. The father gave evidence about her relationship with him and the mother actually conceded in cross-examination that she and Mr K have agreed to marry. The father said in evidence that the mother and Mr K have been in a relationship since May 2010, which is about the time the mother moved to Limassol and started work in the sport complex. The mother said in cross-examination that Mr K owned a sport complex, although she did not say that it was him she was working for, or exactly when they started their relationship. I am satisfied that the relationship started not long after she moved to Limassol.

The mother’s own evidence is that once the father arrived back in Nicosia, she and he readily agreed on a regimen of the girls spending regular alternate weekend time with the father. He says that when the mother and the girls moved to Limassol that he continued to see them each alternate weekend. In contrast, the mother says that for a few months after her move to Limassol, the father did not see the children. She said that he then asked to see the girls and that he agreed to start paying child support for them if she let him see the girls and that she did. She says that she would only let him see the twins if he promised to stay at his parents’ home with them and abstain from using drugs.

The mother says this arrangement continued until February 2011, when the father reduced his time with the children to one weekend in four. She said in affidavit evidence then that from June 2011 to December 2011, the father did not exercise any time with the children at all, despite knowing their whereabouts and contact details. I do not accept this last piece of evidence as being correct and I find that the mother was not truthful about this evidence. I understand the mother herself to concede that it was wrong, at least to the extent that she admits the father spent time with the girls on their sixth birthday in September 2011. She made this concession, I find, after being confronted with photographic evidence attached to a more recently filed affidavit of the father having spent time with the girls on their birthday in 2010 and again on their birthday in 2011.

Further, the father’s photographic evidence, displaying digitalised timing and dating data, appears to show the father spending time with the girls at the beach in July 2011 and again at the beach in August 2011. Although the mother was prepared to accept that the same digital information was correct where it showed the children spending time with the father in March 2011 and again in September 2011, she was not prepared to accept that it was correct when it showed him spending time with the girls in July and August 2011, a period when she had already sworn he did not spend any time with the children. The mother’s approach on this point concerned me. It did her no credit. I considered that she was not prepared to accept the evidence simply because it contradicted her own sworn evidence. Whereas it did do that, I also consider the damage to the mother’s credit caused by what I considered to be unreasonable false denials, was exacerbated by her continued denial.

The two children attended kindergarten or pre-school for some time up to June 2010. The father’s photographic evidence proves that. They were then enrolled in school through the 2010/2011 school year and again in the 2011/2012 school year. They were at a school in Limassol for some time in 2011 before the mother apparently moved back to her mother’s place in Nicosia for a few months in or around September 2011, necessitating a change of the girls’ school. They were then changed to another school back in Limassol from early November 2011 when the mother again moved back there. They remained at that school until they left Cyprus in late January 2012.

The mother attributes the moves from Limassol and back to Limassol, and the changes in the girls’ schools, to changes in her employment and financial circumstances. The father attributes it to separation from, and then reconciliation with, Mr K. I cannot determine who is telling the truth about that but do not consider that it matters greatly in the overall determination.

The mother also accepted the following matters of evidence that I consider relevant to the determination of the children’s habitual residence:

She entered and won a major competition in Sport D in 2010 whilst living in Cyprus.

She entered and won a major competition in Sport D in 2011 whilst living in Cyprus.

She was fully sponsored in respect of the competition entry fees for those two competitions and in respect of the provision of necessary Sport D goods to assist her to prepare for those competitions.

She went on a holiday that went over several days around her birthday in March 2011 that was paid for by Mr K.

Arrangements were made between the parents for the girls to stay with their father whilst the mother was away on the holiday just mentioned.

She had elective cosmetic surgery costing approximately $3,000 during her time in Cyprus, travelling to Lebanon for that, the cost being paid for by Mr K.

The father had actually signed the children’s passport renewal applications at the Australian Embassy in Cyprus early in 2011, not in September at her place, as she and her brother had asserted in affidavit evidence.

That she had filed for and obtained dissolution of her marriage to the father in The Family Court of Lemesos in March 2011 and that the application had been prepared for her by a woman who attended the sport complex she worked at, who claimed to be a lawyer.

That she had read through the contents of the divorce application after it was prepared and accepted them.

As to that last point, I note that the application included the assertions that the mother was a Cypriot and that the couple had moved to Cyprus in 2006 “where they permanently lived in the village of Mammari in Lefkosia.” It did not include reference to the fact that they had moved back to Australia after that time or that the mother was only temporarily back in Cyprus. It included nothing that would support a finding that the mother did not regard herself as habitually resident in Cyprus at the time.

The mother also tendered into evidence (exhibit 1 in the trial) a bundle of copies of bank statements from an NAB account in her name in Australia. The statements cover the period December 2009 to November 2012 and were tendered to show that she began to receive Australian Government Family payments in June 2011. It is unclear how that came about, but it is clear that an officer from the Immigration Data Matching Team in Hobart contacted her in Cyprus by email in late August 2011 about her receipt of Australian Government benefits whilst she was overseas and that she continued to receive the benefit after that contact. One must presume, I consider, that the mother informed the Australian official that she was only in Cyprus for a temporary period, that being the basis of her continued receipt of Australian Government benefits whilst she continued to live in Cyprus.

The bank statements show that as at 27 July 2011 the mother had a credit balance of $4,220 in her Australian bank account. Her oral evidence at the hearing was that the airfares for her and the girls back to Australia cost $4,900. However, the bank statements show that within a week or so of that time $2,500 of that was withdrawn or transferred out of that account in various amounts over a few days. $1,000 was transferred, apparently to the mother herself, two amounts of $500 were withdrawn on the one day at a petrol station in Mt Cotton, near where I understand her brother to live, and another internet transfer of $500 was made with the cryptic entry “Bart Simpson”. None of that was explained by the mother in evidence, nor was she cross-examined about it. One thing is clear though, she did not put all of that money towards airfares home to Australia and she had nearly enough money for such airfares at that time.

The mother also conceded in cross-examination that Mr K has gifted her money since she returned to Australia; a total of at least $2,500. She also told the Court that he has travelled to Australia twice since she and the girls returned earlier this year, is back in Cyprus now attending to business matters associated with a fire in his sport complex and is applying to migrate to Australia on a Business Visa. He has apparently been willing to provide her with cash gifts in the past and to pay for holidays and cosmetic surgery. He would, the mother conceded, give her financial assistance now if she went back to Cyprus. Although the mother said she had told Mr K over the time that she was with him that she wished to return to Australia, she clearly did not get the necessary funds from him to pay for that return.

Of further relevance, there is evidence before the Court that satisfies me that the father is in a new relationship with a woman who the girls spent time with and got to know during the times that they spent in their father’s care in 2011. I am clearly satisfied that he is habitually resident in Cyprus.

Whilst the mother asserts that she had never determined to stay permanently in Cyprus and that she had never changed her intentions of returning to live in Australia, I am quite satisfied that the mother and the children and the father, albeit separately, had, by January 2012, assimilated back into life in Cyprus, and that there was no doubt about their cultural, social and economic integration into day to day life there.

I am quite satisfied that, in this respect, all of the factual circumstances of the family’s presence in Cyprus point to the reality of the children being habitually resident in that country by the time the mother determined to remove them from there and return to Australia in January 2012. Indeed, it would be extremely difficult, if not impossible, in my view, to consider this to be other than one of those cases where the intentions of the parents, whatever they might have been when they went to Cyprus in early 2010, or at any point thereafter, have been “pushed into the background by “the brute force of geography and duration”.”

As Lord Marnoch, in Zenel v Haddow [1993] S.L. T 975, at p979 said:

It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.

Accordingly, I reject the mother’s submission that the applicant has failed to satisfy the Court that the children were habitually resident in Cyprus immediately before their removal from that country in January of this year.

Did the father have rights of custody in relation to the children under the laws of Cyprus and, if he did, was he exercising them at the time the children were removed from Cyprus?

 

Although counsel for the mother made no oral submissions on this point, he had included in his written submissions a submission that the applicant has not satisfied the Court that the father had rights of custody in relation to the children under the laws of Cyprus or that he was purporting to exercise any such rights of custody in respect of the children at the time they were removed from that country.

I respectfully reject both of those submissions.

The State Central Authority attached to the Form 2 Application Initiating Proceedings filed on 28 June 2012, amongst other documents, a Certificate by the Ministry of Justice and Public Order, Central Authority of the Republic of Cyprus, under Article 8(f) of the Hague Convention. In that document, certain provisions of Cyprus’ The Parents and Children Relations Law No 216 of 1990 (as amended until 2008) are set out. They are:

Article 5: Parental Care

(a) The care for the minor child (“parental care”) is a duty and a right of the parents who shall exercise it jointly.

(b) The parental care includes the designation of the name, the care of the person, the administration of the property and the representation of the child in every case or transaction concerning the person or the property of the child.

Article 6: Exercise of Parental Care

Every decision of the parents regarding the exercise of the parental care must aim at the interest of the child.

The same document includes provisions from Cyprus’ Criminal Code (as amended until 2009). They include:

Section 254A

Any person who, while actually exercises joint parental care of a minor with another or other persons, conveys the minor beyond the limits of the Republic without the express consent of that other or other legal guardians, is said to remove it wrongfully from his legal guardian.

Other evidence before the Court satisfies me that the mother and the father certainly had no court ordered parental custody regime in place, either before they both went back to Cyprus or after their return there. They both agree that they had consensual arrangements in place whereby the children lived with their mother and spent time, on an intermittent basis, with their father. They both agree that the children spent time with their father on their birthday in September 2011 and for about 5 days over Christmas in 2011.

Regulation 4(2) of the Hague Regulations says that rights of custody attributed to a person in the convention country in which the children habitually resided before their removal include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

I am satisfied, therefore, that a combination of the provisions cited above provided the father with “rights of custody” within the relevant meaning of that term insofar as the Hague Regulations are concerned. In particular, the father had rights, existing jointly with those of the mother, to determine the place of residence of the children, including the country in which they were to live.

I am also satisfied that the father was exercising those rights, by spending time with the children from time to time, at the time the children were removed from Cyprus by their mother.

I am also satisfied that the children’s removal to Australia was in breach of those rights of custody. Even though the mother argues that the father consented to her bringing the children back to Australia, I accept that the father’s evidence satisfies the onus of proof that rests with the State Central Authority at this point in the process.

It follows, that I am satisfied that a wrongful removal of the children from Cyprus to Australia occurred on 27 January 2012. Consequently, the enquiry now turns to a consideration of the evidence to determine whether or not the mother’s case that one or more of the matters prescribed in regulation 16(3) is proven by her so as to enliven the discretion given to me in such circumstances by the Hague Regulations to determine whether or not the children should be ordered to be returned to Cyprus.

Did the father consent to the mother bringing the children back to Australia when she did?

The mother’s evidence about this is contained in her affidavits that were filed and relied upon by her. She said in her first affidavit filed as part of her Form 2A – Answer on 23 August 2012 that in September 2011, she received a telephone call from her “Coach” and was told that “they had opened a [sport complex]” and he offered her a job. She believed this was the perfect job for her, she said.

She said that she then had “several discussions with [the father] and told him [she] wanted to return to Brisbane with the twins.” She went on to say that she told him she would facilitate the children travelling to spend time with him in Cyprus as long as they stayed at the paternal grandparents’ home. She said that the father agreed and “even signed the new passport applications for the children.” She said that she then got her affairs in order and returned to Brisbane on 27 January 2012.

The mother’s brother in his affidavit said that he had travelled to Cyprus during the time that his sister was there and that he was present when his sister told the father that she and the children were returning to Australia after Christmas. He said that he recalled the father had come to return the children from a visit and that he was afraid the father would get angry when his sister told him of her plans, so he stood behind the door in case she needed some assistance. He said that he could hear their conversation clearly and that she said that she and the children were planning on returning to Australia. He said that his sister advised the father that the children’s passports had expired and that she there and then provided him with the renewal forms to be signed. The mother’s brother said that the father “signed the forms immediately and handed the signed forms back to [his] sister.”

In her affidavit attached to the second Form 2A – Answer filed by the mother on 17 September 2012, the mother said the father had signed the children’s applications for renewal of their passports in March, 2011. That was six months before she had said in her first affidavit that he had. In cross-examination at the hearing, the mother conceded that the evidence she gave in her first affidavit was incorrect and that it had been an oversight on her part when swearing that affidavit not to see that mistake. She accepted that the father had signed the passport applications, as he said he had, earlier in 2011 and not after she told him of her decision to take the job offer made to her in September 2011 and return to Australia in January 2012.

The father said in one of his affidavits that he had signed the passport renewal applications earlier in the year when asked by the mother, simply to facilitate the renewal of the girls’ passports so that they could travel abroad with either parent if desired, not with knowledge that the mother was planning on taking them back to live in Australia. He said the applications were lodged at the Australian Embassy in Nicosia.

In his oral submissions, counsel for the mother conceded that the mother’s brother’s evidence that he witnessed the father sign the passport renewal applications at the home after hearing her tell the father that she wanted to take the girls back to Australia after Christmas 2011 was, in fact, wrong and could not be correct having regard to the fact that the renewal applications were signed “at the Australian Embassy or High Commission”.

Some other evidence given by the mother caused me to seriously doubt her honesty in respect of this matter. When the mother was put in the witness box, her counsel obtained the Court’s leave to lead some further evidence in chief from her. She told the Court that if the children were ordered to be returned to Cyprus pursuant to the Hague Convention that she herself would not return with them. She said that she would let the 2 children go alone. She began to shed tears and said “I have nothing over there, I have nothing, nobody and I am scared.” However, only moments later under cross-examination from counsel for the State Central Authority she accepted that Mr K, who she was living with in a relationship of cohabitation in Cyprus, and who she has agreed to marry, is in Cyprus now and has been since she left in January, save for two visits he has made to Australia to spend time with her in the meantime. She said he was in Cyprus now due to being involved in a court case for compensation over fire damage to his sport complex. She conceded he had a home there, although she had previously said she did not know whether he owned property there. She also conceded that she could expect to get some financial support from him if she went back, as she has in the recent past. Her answers given under oath, against the backdrop of tears, only a few moments before were, quite clearly, not true.

I have further regard, in determining this aspect of the matter, to the evidence put before the Court by the State Central Authority in the form of letters from the Principal of the Primary School attended by the two girls prior to the time of their departure from Cyprus. Letters dated 31 January 2012 report that the girls attended the school in Limassol from 8 November 2011 until 17 January 2012. Both were absent from school from 18 January and the absence was attributed to health problems as reported to the school by the mother. The letters report that the school contacted the mother on 26 January 2012 and “she informed [the school] that the pupil[s] [are] still ill”.

The mother has not contradicted or denied any of that. The evidence begs the question as to why the mother would not have informed the girls’ school that they were leaving the school and travelling back to Australia to live if the move was one which both parents had agreed to. I can think of no reason why the mother might not have informed the school of the move if it was not a unilateral move, being executed secretly, as the father says it was. Certainly, the mother put no such reason before the Court.

I also have regard to the fact that the evidence establishes that the mother had, along with three other persons, been charged with a criminal offence, possessing a prohibited substance (performance enhancing drugs), which charge was before the Courts in Cyprus at the time of her departure. The evidence supports a finding that the mother returned to Australia whilst that charge was still pending and unresolved before the courts of Cyprus and that she simply failed to turn up to answer it. The mother’s evidence under cross-examination was that she was in reality just a witness and that she did not have possession of any of the substance and that her lawyer had given her the impression that he was dealing with the matter and that it was alright for her to leave Cyprus with that charge unresolved. That evidence given by the mother was surprisingly at odds with the written submissions of her counsel who submitted that it would seem likely that the mother would be charged with the offence again upon arrival back in Cyprus if she were to return. I do not accept the honesty of the mother’s evidence on that point.

Finally, on this point, I have regard to the evidence put before the Court by the mother that she had determined to go back to Australia in September 2011 after being offered a job in a sport complex by her “Coach” and her evidence, in her first affidavit, that upon her arrival back in Australia she “commenced employment at [Suburb E Sport Complex].” However, the mother conceded in cross-examination that when she arrived back in Australia she applied for and obtained a Supporting Parent’s Benefit from Centrelink. The bank statements that are Exhibit 1 disclose that she was regularly receiving a Centrelink pension from soon after her arrival back in the country. Whilst there are some unidentifiable cash deposits into her account for a few weeks commencing 21 February, 2012 and a few very small debits at Suburb E Sport Complex on one day in early March, there is nothing else that goes to establishing that the mother did actually come back to Australia to a job at the sport complex.

Accordingly, having regard to all of the matters just discussed, I do not accept as honest the mother’s evidence about having the father’s informed consent to bring the children back to Australia to live in January. I find that she did not have his consent to do so and that she has dishonestly deposed to the fact that she did. The mother has not made out her case that the father consented to the children being removed.

Is there a grave risk that the return of the children to Cyprus under the Hague Convention would expose them to physical or psychological harm or otherwise place the child in an intolerable situation?

The mother also submitted that the Court would be satisfied that the return of the children to Cyprus would give rise to a grave risk that they would be exposed to physical or psychological harm or otherwise place them in an intolerable situation because:

of the father’s alleged illicit drug use and violence; and

the children would be exposed to poverty and instability.

Firstly, although the father denies his past drug use, I am satisfied that he has not been truthful in those denials. As I have already observed, I also do not accept his denials in respect of the mother’s allegations of his conduct in respect of the serious incident of domestic violence in late 2009/early 2010.

However, the mother and the father were both in Cyprus at the same time over most of the 2010 and 2011 years. The evidence is that they interacted sufficiently to make arrangements on a regular basis, and from time to time, for the children to go and spend time with the father for a few days at a time, even up to five days at one time over Christmas 2011, not long before the mother left Cyprus. Although the mother says that she required the father to exercise his time with the girls in the presence of his parents, I am not satisfied, particularly having regard to the father’s evidence and the photographic evidence put before the Court that he always was at his parents’ home and in the presence of his parents whilst the children were in his care. I am equally satisfied that the mother would have known that. She certainly does not say that she was not so aware.

Whilst the mother deposes to suspicion that the father was still using drugs, she does not depose to not letting the children spend any time with him. She clearly was not so concerned as to do that. She also does not depose to any instances of violence as between her and the father, or the father and any other person, during those 2 years. There is no evidence that she would not meet with him at all for the handover of their children. There is no evidence that would satisfy me that the mother thought things were so bad in respect of the father that his time with the children needed to be stopped, curtailed or strictly supervised. I cannot accept that things have now changed so dramatically in regards the father’s behaviour that the children should not be sent back to Cyprus.

This is not to say that the Court condones any use by the father of drugs or any of the past violence that has occurred between the parents or that the father might otherwise have been involved in. No conduct like that can be condoned, particularly where it might interfere with or impede a parent’s capacity to care properly for young children or where it might more directly impact upon the children.

However, the evidence clearly satisfies me that whatever the father’s problems in the past, the mother was prepared throughout 2010 and 2011 to come into contact with the father on a regular basis, communicate with him regularly and to let their children spend time with him for days at a time on a regular basis. Her fear of him and her concern for her children’s wellbeing in his care, which she asserts now causes her to say that the children would be exposed to grave risk of harm if they are sent back to Cyprus, certainly did not prevent her from co-parenting with him and letting their daughters go with him, time after time in those 2 years in Cyprus.

It is to be remembered that the determination to make a return order is not a decision made on the basis of ‘best interests’ considerations. If those matters are to be litigated about, they are matters for determination in the courts of Cyprus.

Although the mother said in oral evidence that she will not return to Cyprus, I am not convinced that she will not. In fact, I expect that she will go back. She certainly does have her partner, Mr K, who she is now planning on marrying, living in Cyprus. He has a home and would give her financial support. He clearly has some financial means given that he supports himself, has travelled to Australia and back to Cyprus twice already this year, has given the mother at least $2,500 in support this year, paid $3,000 for cosmetic surgery for the mother in 2011, paid for a holiday for him and the mother in 2011 and is involved in litigation in the courts of Cyprus himself in which he seeks compensation. Also, the mother gave evidence that she had worked for his mother before she left Cyprus and was paid cash by her. That was one of three jobs the mother said she had at the one time. She has Cypriot citizenship, speaks Greek and has lived there for many years in total. She has previously totally assimilated into life in Cyprus.

Although the Court cannot make the mother return to Cyprus with the children, I am quite satisfied that the mother could readily return there and take up life there as she left it in January. Evidence has been put before this Court that the Attorney-General of Cyprus will not prosecute the mother for removing the children in the first place without the father’s consent if she does return with the children. I have no reason not to accept that evidence.

If the mother returns to Cyprus with the children, I am satisfied that there is not a grave risk that the children will be exposed to physical or psychological harm or placed in an otherwise intolerable situation. They will simply be back in the same circumstances they were in for the two years before their removal to Australia. Should the mother decide not to return to Cyprus, that is a matter for her, but as has been said many times in Hague Convention decisions, the Court cannot let itself be pushed too easily to a conclusion that there is grave risk simply by a parent who says “I will not return with the children”. Having carefully considered the mother’s evidence that she will not return if the girls are returned to Cyprus, I am simply not satisfied that either there is a reasonable basis for such a position or that, in fact, the mother will not actually return with the girls.

I also reject, for all of the reasons I have just set out, the mother’s case that the children will be exposed to “poverty and instability” such that there is a grave risk of harm to them. I do not accept that is what awaits the children on a return to Cyprus, particularly with Mr K’s generous support waiting there and the mother’s own demonstrated capacity to find work there.

As should now be clear, I am not satisfied that the mother has brought her case within one of the ‘exceptions’ to mandatory return set out in regulation 16(3) of the Hague Regulations. Accordingly, I will be ordering the return of the children to Cyprus in accordance with the Hague Regulations that give effect to Australia’s obligations under the Hague Convention.

I say at this point though, as I consider it appropriate to do, that if I am wrong about my determination on either of these two regulation 16(3) exceptions that the mother tried to make out, I would not order the return of the two children and would dismiss the application.

Clearly, if the father had given consent to the mother bringing the children out he should not expect them now to be returned to Cyprus, and if there was a grave risk of the children being exposed to physical or psychological harm by return to Cyprus, they should not be ordered back. If either of those circumstances existed, I could not say that there are other circumstances that would still cause me to order the return of the children to Cyprus in any event. The application would be dismissed in those circumstances.

I intend to order the return of the children to Cyprus. I will give the parties the opportunity to jointly settle the terms of such return order and if no such agreement can be reached I will hear submissions from both parties as to the terms of such order before I make it.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 November 2012.

Associate:

Date: 9 November 2012


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