Hague Convention application fails – UK was not the “habitual residence”
Concluding observations and further findings
- I accept that it is more likely than not that, in reaching what I have concluded was a joint decision to move to live in Australia together after the child’s birth here, neither party contemplated the cessation of their relationship.
- I accept, as was submitted by Ms Oakley, that there is no evidence to support a conclusion that the decision to move to Australia was conditional on Mr Hibbert’s ability to live here – rather, it seems the parties assumed it would all be okay and acted to implement that intention.
- I accept that Mr Hibbert attempted to seek work in Australia and that he did so in furtherance of a joint decision, taken before the Respondent travelled to Australia in 2016 in furtherance of the child’s birth here, to move to live together in Australia permanently.
- I accept that the fact that the Respondent sought a school exemption in Australia before returning with the children to the United Kingdom in November 2016 is inconsistent with the idea that the 2016 trip to Australia was for a holiday.
- I do not accept the contention that, by enrolling the child’s siblings into school following their November 2016 return to the United Kingdom the Respondent evidenced an intention to remain in that country: after all, it is an accepted fact that the children were enrolled into school in Australia upon their arrival here in mid-2016.
- I accept that it is relevant to note that there was never any joint application or steps taken by the child’s parents to secure her a status in the United Kingdom which would have enabled her to live permanently in C Town. Nothing was done by them before she travelled to the United Kingdom in November 2016 or before the breakdown of their relationship in early December 2016 and nothing was done jointly by them after this. I accept it is significant that, until mid-January 2017 (when Mr Hibbert acted unilaterally to obtain a passport for the child), neither parent had taken any steps at all for the child to live permanently in the United Kingdom.
- I accept that, until the breakdown of the parental relationship in December 2016, the parties’ joint intention was that Mr Hibbert would return to Australia with the Respondent and the child (and her siblings) by no later than April 2017 to live here permanently.
- I accept that, for a time after the breakdown of the relationship, Mr Hibbert was still trying to find ways to return to Australia to live here permanently and that he was doing so because he knew that is where the Respondent and the child would be living.
- I accept that, after the breakdown of their relationship, Mr Hibbert’s intention about Australia changed but the Respondent’s did not. I consider that the mere fact that Mr Hibbert’s intention vis-à-vis the child’s habitual residence subsequently changed at some time after the breakdown of his relationship with the Respondent is insufficient to cause a change to the same.
- I accept that the naming ceremony organised by the Respondent in the United Kingdom had the dual purpose of introducing the child to members of her extended family and friends and also to enable such people to farewell the Respondent, the child and her siblings before their return to Australia; the latter is established, in my view, by the reference to the event being a “leaving for Oz” party.
- For the reasons expressed, I consider that, when she entered the United Kingdom in November 2016, the child was habitually resident in Australia and that she remained so as at 20 December 2016. Contrary to the arguments advanced by Mr Hibbert, I am not persuaded that “the landscape” changed after 20 December 2016 such as to persuade of a conclusion that immediately before 1 February 2017 the child was habitually resident in the United Kingdom.
- In fact, I consider that the evidence clearly establishes that the child was not habitually resident in the United Kingdom immediately before she was removed from that country by the Respondent.
- It follows that I am not persuaded that Mr Hibbert has established that the child’s removal from the United Kingdom on 1 February 2017 and her subsequent retention in Australia after that date was wrongful under subregulation 16(1A) of the Regulations.
- Consequently, the Application for a return order is dismissed.
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Queensland/New South Wales/Victoria