No place of habitual residence? Department of Communities and Justice & Bamfield [2021] FedCFamC1F 263

In Bamfield, Justice Bennett of the Federal Circuit and Family Court of Australia was asked to consider the place of habitual residence of a young child born in Belgium in early 2020 to an Australian mother (who identifies as a First Nations Woman) and a Belgian father, in a Child Abduction Convention case.

The child’s parents had spent time living in each of Belgium and Australia, before the child was born in Belgium and then taken by her mother to Australia when she was seven months old.

Child’s habitual residence where there was indecision by her parents

The child was born in Belgium in early 2020 and travelled to Australia with the mother in August 2020 with the father’s consent. The parents had agreed to two months of travel and the mother and child were due to return to Belgium, leaving Australia on 30 November 2020. On 12 November 2020, the mother informed the father that she would not be returning to Belgium with the child.

In March 2021, the Department of Communities and Justice (being the state central authority in Australia (“SCA”)) filed an application in Australia seeking the child’s return to Belgium under the Hague Convention on the Civil Aspects of International Child Abduction 1980 as it is implemented in Australia.

Justice Bennett was required to consider the child’s place of habitual residence to determine if the mother’s refusal to return the child to Belgium amounted to a wrongful retention of the child in Australia under the Convention.

Determination of the child’s place of habitual residence was made difficult by not only the child’s young age, but the parties’ significant comings and goings between Australia and Belgium in the five years prior to her birth. The judgment details these and other matters and various communications between the parties about their plans and intentions throughout their relationship and during the mother’s travel to Australia.

Ultimately, counsel for the mother submitted “neither parent had relinquished their country of origin as their habitual residence but nor had either parent abandoned the possibility of becoming habitually resident in the other’s country”, and accordingly that the child did not have a habitual place of residence. Her Honour agreed there was some force in the submission as to the parents’ residence but found “the indecision of the parents ceased to have any practical effect for some months prior to [the child]’s birth and for all of the time she was in Belgium”.

Justice Bennett adopted the twofold test set out in Zotkiewicz & Commission of Police (No 2) [2011] FamCAC 147 in respect of the child’s place of habitual residence, namely:

1. First, “to ascertain whether the parents had a shared intention that the child would live in [the relevant country] with a sufficient degree of continuity that their purpose could properly be described as settled”; and
2. Second, “to determine whether the period of time spent in [the relevant country] was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and [the relevant country] was such as to justify a finding [the child] was habitually resident in that country”.

As to the first part, Her Honour determined that given the ambiguity of the mother’s intention to reside in Belgium she “[could not] be satisfied that both parents had a shared subjective intention that the X would live in Belgium with a sufficient degree of continuity that their purpose could properly be described as settled”.

In respect of the second limb, Justice Bennett noted that the first seven months of the child’s life had been in Belgium, more than the six-month period in Zotkiewicz. Whilst not determinative, it nevertheless amounted to all of the child’s young life. Her Honour observed the parents’ relationship with Belgium was not transitory or temporary – the father was employed there, his family were there, the parties owned property there and through those things, living with her parents, the child was connected with Belgium.  

Her Honour commented:

There is something of an opportunistic quality to the mother’s submission that X has no place of habitual residence.  All things being equal, had the father removed X from Belgium and taken her to, say, Germany without the mother’s consent…it is inconceivable that the mother could not have made out a claim for wrongful removal based on X’s habitual residence in Belgium.

Referring to the mother’s assertions in respect of her intention and unhappiness in Belgium, Justice Bennett expressed concern about elevating the importance of parental intention “to a level much higher than that countenanced by the High Court in LK or the Full Court of this court in Zotkiewicz”

Her Honour determined that the child’s habitual place of residence (and therefore the country which was the appropriate forum to deal with orders pertaining to the child’s care, welfare and development pursuant to the Child Abduction Convention), was Belgium.

For Justice Bennett’s consideration of the mother’s contention that the child’s return to Belgium would place her in an intolerable situation because of her status as an Aboriginal child and First Nations Australian, see separate case note here.

Department of Communities and Justice & Bamfield [2021] FedCFamC1F 263