The case of Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233 (11 December 2015) was an appeal brought by the Commonwealth Central Authority against the orders of Deputy Chief Justice Faulks (“trial judge”) of the Family Court of Australia.

The trial judge had to determine whether children should be returned to Finland under international child abduction laws.  The key question was whether the children were habitually resident in Finland or not.  If they were, they would need to be returned to Finland, otherwise, they would remain in Australia.  The trial judge found the children were not habitually resident in Finland.

On appeal, the Court overturned the trial judge’s decision and found the children were habitually resident in Finland and should be returned to Finland.

Background

The mother in this matter was a dual citizen of both Australia and Finland.  The father was an Australian citizen.  They had 3 children together between the ages of 14 and 8.  The parties married in 1996 and moved to the United Kingdom and stayed there for 8 years.  In 2002 they moved to Finland for two months and then from November 2002 they lived in Australia.  On 16 June 2014 the family traveled to Finland to live for a year.  In March 2015 they temporarily returned to Australia for a wedding.  While in Australia the father and mother separated.  The children stayed with the mother.  The father took the children’s passports and refused to let the children return to Finland.

Opposing Applications for Child Recovery and Parental Responsibility of the Children

On 31 March 2015, the father filed an application with the Federal Circuit Court of Australia to have the children placed on the Airport Watch List.  Further, on 8 April 2015, the father sought a recovery order for the children and had the proceedings transferred to the Family Court of Australia.

Meanwhile, on 3 April 2015, the mother filed proceedings in the Helsinki District Court of Finland to have an order made in her favour for interim sole custody (parental responsibility) of the children.

Return of Children to Finland

Having received the mother’s application for interim sole custody, the Finnish Authorities made a request on 12 May 2015 to the Commonwealth Central Authority for the children to be returned to Finland.  The Commonwealth Central Authority brought proceedings against the father.  The matter proceeded to trial for determination.

Trial Proceedings

On 6 July 2015, the trial judge considered whether the children should be returned to Finland under The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”).  The Hague Child Abduction Convention applies in Australia through the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“Child Abduction Convention Regulations”).

The primary consideration was regulation 16 of the Child Abduction Convention Regulations.  This regulation provides that a return order can be made where the removal or retention of a child was wrongful, the child is 16 years of age, the parent has a right to custody and the child was habitually resident in a Hague Child Abduction Convention country immediately before removal. In his deliberation, the trial judge found the parent’s agreement to remain in Finland for 1 year amounted did not amount to habitual residence.  As a result, the return order application failed.

Appellate Proceedings

The Commonwealth Central Authority appealed on three grounds being:

1. the trial judge did not give sufficient weight to regulation 1A(2)(a) and (b) of the Child Abduction Convention Regulations;
2. the trial judge gave:
   1. too much weight to the absence of a settled common intention to live in Finland for more than 1 year; and
   2. too little weight to the settled common intention of the parents to remain in Finland for at least 1 year.
3. the trial judge failed to take into account all of the circumstances of the parents and children’s ties to Finland.

The Court determined that the primary consideration is whether the parents have a shared common intention that the children live in a particular place.  After this, a broad-based inquiry of all other relevant circumstances should be made.  The Court determined that the regulations favour a determination of habitual residence as opposed to a finding of no habitual residence.  Where there is no finding of habitual residence then no child abduction protection exists under the Child Abduction Convention Regulations.

Based on this information the Court determined the grounds of appeal of the Commonwealth Central Authority as follows:

1. The trial judge gave too much weight to the absence of a settled common intention for the children to live in Finland. The Court considered that the children were in school in Finland, the mother was employed, the parents had established a residence, the children had relatives in Finland and the mother and father were receiving benefits from the central government including health benefits.
2. The trial judge made an error in his determination that a common settled intention to live in Finland for 1 year did not amount to habitual residence. A common intention to reside in a country for less than 12 months can amount to habitual residence.
3. The Court found that there was no evidence that the trial judge ignored the circumstances of the parent’s and children’s ties to Finland. The trial judge made a thorough investigation.

As the Court found the first two grounds of the Appeal proven, it found that the children were habitually resident in Finland.  As such regulation 16 of the Child Abduction Convention Regulations applied and the return order for the children to be returned to Finland was granted.

Conclusion

In this case, the parents and children left Australia to live in Finland for a year.  They returned to Australia after 9 months for a wedding.  After the parents separated while in Australia, the father refused to allow the children to return to Finland.  The Finnish Authorities requested the children be returned to Finland under the Hague Child Abduction Convention.

The primary determination was under regulation 16 of the Child Abduction Convention Regulations which requires that children be habitually resident in a country before they can be returned to that country.  The primary consideration in answering these questions is whether the parents have or had a shared common intention to live in the country.  Having considered this, the secondary consideration includes all other relevant matters that show ties to the country of claimed habitual residence.  While a finding of no habitual residence can be made, Courts will prefer a finding that habitual residence does exist between country members to the Hague Child Abduction Convention; otherwise, no child abduction protection may be available.