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[2012] ZAGPJHC 45
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Central Authority for the Republic of South Africa and Another v MA (11/39798 (2012/1096)) [2012] ZAGPJHC 45 (20 March 2012)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 11/39798 (2012/1096)
DATE:20/03/2012
In the matter between:
THE CENTRAL AUTHORITY FOR THE
REPUBLIC
OF SOUTH AFRICA
….....................................................
FIRST
APPLICANT
E,
RC
..........................................................................................................
SECOND
APPLICANT
and
M, A
…...............................................................................................................
RESPONDENT
JUDGMENT
SATCHWELL
J:
INTRODUCTION
This
is an application brought in terms of the Hague Convention on the
Civil Aspects of International Child Abduction 1980 (“the
Convention”).
1
The Central Authority of South Africa
2
and the father of the child seek the mandatory return of a minor
child, A M E, (“A”) currently 4 years old, to the
jurisdiction of Australia.
The
principles underlying and the objectives of the Convention have been
set out and restated in numerous South African authorities
and I do
not need to repeat same.
3
Where a child has been wrongfully removed from his/her “
state
of habitual residence
”
4
then this Court is required to order the return of the child. In
terms of Article 3 of the Convention, the removal of a child
is
considered “
wrongful
”
where such removal is firstly, “in
breach
of rights of custody attributed to a person, ...under the law of the
State in which the child was habitually resident immediately
before
the removal”
and secondly
“b) at the time of removal ...those rights were actually
exercised…or would have been exercised but for the removal…”
The
onus to establish both jurisdictional prerequisites of “
habitual
residence
”
and
“breach
of the exercise of custodial rights actually exercised at the time
of the removal”
rests upon the applicants, in this case the Central Authority and
the father.
5
The
central issue in dispute is whether or not these jurisdictional
facts of residence and custody have been proven. If that has
been
done, respondent seeks to demonstrate that
“the
child
is now settled in its new environment
”
6
and that the removal to Australia would expose the child to
“great harm or in an intolerable situation”
.
7
Finally, it seems to me that this Court is permitted to consider
whether the father subsequently
“acquiesced in the removal
”
of the child.
8
This Court must always, and throughout all these enquiries, have
regard to the Constitutional imperative of the “best
interests” of the child
9
as also the context of the Children’s Act 38 of 2005.
10
A’S
BIOGRAPHY
Parents’
relationship before her birth
Second
Applicant, the father of the child (“R”) and the
Respondent, the mother of the child (“A”) met
in June
2000 in Kosovo where they were both working as United Nations
volunteers.
11
A continued in Kosovo whilst R moved first to England and then to
Indonesia.
12
R and A holidayed in Thailand in 2006.
13
She then went to Indonesia to join him in May 2006,
14
spent a month at his home in Turkey in June
15
and then in July she joined R in Indonesia where he was working.
16
By
October 2006 A was pregnant and living in Indonesia with a visit to
Australia for pre-natal testing in November. R was working
in
Indonesia and in a relationship with a girlfriend in Cambodia.
17
Neither prospective
parent appears at the time to have had a settled territorial
attachment or residence (other than R’s
employment in
Indonesia and his home in Turkey). It was therefore an open
question where their child should be born:
“
Please
make up your mind where you want to have the kid. Australia is fine
with me however if it is not for you please tell me as
soon as
possible. If you have the kid in SA I will not buy a car...I am not
happy you want to live on your own when you are new
to the country
and have no friends there... I intend to fly to Cambodia on the 4
February and return when you think it is best.
”
18
R:
3 December 2006
A’s Birth - 16 May
2007
A
decided to remain in Australia – A was not born in Indonesia
where R was living and working, nor in Turkey where he had
a home,
nor in South Africa where A’s family lived. A was born in
Australia on 16 May 2007.
19
Ross spent the month of December 2006 in Australia and returned for
her birth in May where both parents remained until A could
travel.
They all left for Turkey on 6
th
July 2007.
20
July 2007 – June 2010
R,
A and A remained in Turkey until the end of 2007. A and A then came
to South Africa in December 2007 while R remained in Turkey
until
February 2008 when he went to live in Cambodia.
21
A continued in South Africa until June 2008.
22
In
6 June 2008, R returned from Cambodia to his home in Turkey
23
and A and A spent a month with him there from 11 June until he left
to take up employment in Sudan.
24
A and A remained in Turkey for 8 months until early February 2009
with R returning home on two occasions.
25
A
and A returned to South Africa in early February 2009 and lived in
Cape Town while A applied for a long term residence visa
from Turkey
(‘Ikamet’) which was granted in June 2009.
26
They returned to Turkey on 15 June 2009. During 2009 R was working
in Sudan and returned to Turkey for a 5 day visit.
27
A
and A remained in Turkey until they left for Australia on 13
th
June 2010.
28
SOJOURN
IN AUSTRALIA
Application
for permanent residence visa
In
August 2009 A applied for a permanent residence visa to and from
Australia which was sponsored by R.
29
Of particular relevance are the details given by R as set out in the
Sponsorship form for a partner to migrate as regard his
and A’s
relationship, his financial commitment to her and his residential
and employment details:
R
states that he is the
“de
facto spouse”
to A and that he intends to
“maintain
a lasting relationship”
with her.
R
records his residential address as “
13
Sokak 330 Uzumlu, Fethiye/Mugla Turkey“
30
and that in the past ten years he has lived in
“Syria,
Kosovo, Afghanistan, Yemen, Indonesia, Turkey”.
31
R
commits himself to support A financially by providing
“adequate accommodation and financial assistance as required to
meet your partner’s reasonable living needs …..
[which]
assistance would cover the two years following the grant of her
partner visa”.
32
Response
to granting of visa
In January 2010 the
permanent residence visa was approved.
The response of
both A and R to the grant of this visa appears from a series of
emails exchanged between them over the period
13 January 2010 to 8
February 2010 from which extracts are reproduced below – A is
writing from Turkey and Ross from Malaysia,
Turkey, Thailand,
Cambodia and Afghanistan:
“
5
year permanent residency –basically, for the 1st 5 years,
you’re entitled to come and go as you please”; “The
following scenarios spring to mind: 1. Leave permanently when Ikamet
expires in June. 2. Go to Australia in April – back
in Turkey
before end of May to pay bills...and renew Ikamet...3. Pay bills and
renew Ikamet at end May – go to Australia
June and July, return
to Turkey early August. Leave permanently when new Ikamet expires or
earlier during next year.”; “[t]his
is a huge move and I
know once we have moved there, we will probably not travel, anywhere
for a long time...”; “what
will I do in Australia? I
think I should start with the banks....”; “Having said
all of that, the bigger issue of me
generating an income while living
in Turkey is unresolved- I am open to suggestions, and to be quite
honest, I am even considering
going into a partnership with my sister
in a catering business.”
A:
13 January 2010
“
This
visa will affect how we and the world see our relationship”;
“it must be clear to all that we are not a couple...”;
“...living in Turkey will most likely be cheaper than living in
Australia. So if going to Australia you must find a job soon”;
“This is my plan for the next 18 months- I will not coming to
Australia with you and A though would like to meet in Turkey...”
R:
13 January 2010
“
I
think the idea would be for you and A to leave Turkey in May with the
view of not returning; that means that you should take all
things
that you are emotionally attached to.”; “I said
previously that I was unwilling to cover all your costs in Australia.
Part of the reason for my attitude is that I don’t see you
giving me access to A. As you have probably realised I don’t
intend to visit you and Ayla in Australia as I find our relationship
extremely unhealthy.”
Ross:
8 February 2010
Australian Experience
A
and A eventually arrived in Australia on 13 June 2010 where they
remained for a period of three and a half months. They left
on 1
st
October 2011 when they came to South Africa. Again, a series of
emails exchanged between R and A indicate their various experiences
and states of mind over the duration of these months:
“
I
am leaving for Cambodia tonight and will be back on the 24
April.”
R:
8 April 2010
“
I
just sent you $ 20 000 in the past month”; “I will have
little to do with you for the rest of my life. There is A
which I
intend to remain in contact with”; “Right now I do not
know if will have a job next year. If I do I will provide
money for
A. If you are concerned that I am not pulling my weight than please
see the gov authorities on child payments and just
as important,
access to A. I intend to do the right thing.”
R:
7 July 2010
“
I
need to update you on what is happening over here – so far, I
have only been able to find casual work”; “I have
submitted many job applications... and am constantly searching and
applying...”; “I have been delaying submitting any
claims
with Centrelink, as I will have to declare our ‘separated’
status and am concerned that this early into my residency,
this will
raise many questions about sponsorship, child support etc...and that
they will see me as liability and revoke my permanent
residency.”;
“it will certainly not be enough to cover A daycare.”;
“It is not my intention to register
a claim with Centrelink...I
will need to complete forms advising them that we are separated...”
A:
5 August 2010
“
I
have a few questions: What claims are you submitted to Centerlink?
Why do you need to give them your status? Are you eligible
for child
support since you are working, and how will your marital status
affect the claim?”; “It will probably take
you 12 months
to find a good job and get settled; you need to be prepared for a
hard year in front of you. I am not prepared to
support you but only
because of your constant bad attitude. Money has little value for me;
but with you bad attitude giving money
to you will not be helpful.”
R:
7 August 2010
“
you
have two options; continue the masquerade with us as partners or go
it alone. Since I receive $ 15 000 a month consultancy
fee it is
unlikely you will receive any benefits – in the case we
continue the masquerade. It would be better if you went
it alone
however do not jeopardise your visa.”; “Please take
responsibility for your life; I am not going to do it
for you
especially as dealing with you makes me feel like a loser.”; “I
will not support you; that you need to take
steps now to get your
life in order...we must keep our relationship distant”; “I
will support A however there is no
money in the foreseeable future.”
R:
11 August 2010
“
Currently
we are linked on Centrelink as partners...”
A: 11 August 2010
“
Please
consider letting me take A for 6 months while you find your feet.”
R:
12 August 2010
“
Thinking
about next year; A cold come to live with me in Turkey for a while
until you are more settled. It means I have a chance
to spend time
with A and A will learn Turkish.”
R:
12 August 2010
“
It
would be nice to resolve this issue as soon as possible though in
reality it could wait till I finish work at the end of the
year. It
is likely this issue will have to go to the family court next year.
The family court will give me access to A especially
as I have the
money, house etc and therefore I don’t see why we should not
come up with an agreement which suits all. I don’t
intend to
take A away from you for the long term but I do not to be part of her
life. Without her staying with me how do you think
I will have
access to her? When and how do you think I will meet up with her?”
R:
13 August 2010
“
I
am on the move so best way of contacting me is by email.”
R:
9 October 2010
Departure from Australia
A
and A arrived in South Africa at the beginning of October 2010.
Again, extracts from their emails indicate the reasoning of
A for
her move and the response of R thereto:
“
adjusting
to life in Australia has not been very easy for A and myself. It has
been extremely difficult for me to cope with the
financial dilemma I
have found myself in.”; “I have been trying to find a
permanent job in Australia which would be
financially viable, but
have so far been unsuccessful.”; “I came to the
conclusion that the best positive solution
to resolve all the issues,
was for me to be on familiar ground, where I am known and would more
easily be able to source the help
for permanent job, and whereby I
would then be able to provide myself and A with a decent life. Hence,
the decision was made to
leave for SA.”
A: 6 November
2010
“
To
make a decision to return to SA after only 5 months in Australia and
in a place where we both agreed that there was little opportunity
for
work only shows a lack of thought and will. This is not a good
decision for A, but at least she has an Australian passport
and will
be able to escape SA when she is older.”
R:
6 November 2010
“
I
have been told that I have two options, they are: 1. We come to a
formal agreement ourselves where I am given access to A for
three
months of the year and daily contact through Skype. Included in that
would be maintenance for you and A. 2. Issue a missing
persons report
for A under the Hague convention for children. In that application I
will ask for full custody of A. In addition
I will cancel my
sponsorship of your residence visa and inform the relevant
authorities that I have issued an abduction order against
you.”;
“If you take the first option I will pay for you to travel with
A to Australia and again to bring her back to
SA, until A is old
enough to travel on her own. I will also cover your costs if you
preferred to stay in Australia when A is with
me.”
R:
7 November 2010
“
[a]s
her father I have unalienable rights then please consider the
following for option 1. I don’t ask for my rights under
the
Hague convention. And I do not impede your return to Australia by
notifying the authorities that you have abducted A. 2. I
pay
maintenance for A based on SA laws...3. You give me access rights to
A for three months of the year. You would accompany her
on the
flights from and to SA until she reaches the age where she can travel
on her own…6. When A is with me in Australia
you can register
an airport watch to stop me taking her out of the country without
your permission.”; “I would like
A to accompany me to
Australia from Dubai in December. I will pay for your airfare to
Dubai and return. In two months time you
will come to Australia to
return Ayla to SA. This two months will give you time to find a
proper job and home in SA.”
R: 8 November 2010
“
I
still like option 1 but know that it will never happen. For that
reason, I will preserve with option 2. I will ask for full custody,
not because I want to replace you as A’s mum but to put myself
into a position that I can make compromises. After gaining
custody,
my intention would be to give up the right to look after A full-time
though give myself some time with her.”
R: 10 November 2010
HABITUAL
RESIDENCE
Legal
Approach
The
first requirement for the finding that the removal of A from
Australia was “
wrongful
”
is determination of the jurisdiction where A was “
habitually
resident”
immediately prior to 1 October 2010.
It
has not gone unremarked that this jurisdictional fact is undefined
in the Convention.
33
The
Court
must therefore interpret this expression according the “
the
ordinary and natural meaning of the two words as a question of fact
to be decided by reference to all the circumstances of
any
particular case
.”
34
The
approach to determination of “
habitual
residence
”
appears to be based either upon the life experiences of the child
herself or the customary associations and intentions
of the parents
of the dependant child.
With
regard to the child’s removal from an habitual residence, the
Courts
have accepted the
“implication
that it is being removed from the family and social environment in
which its life has developed
”.
35
Enquiries into this environment have been concerned whether the
child has established “
a
stable territorial link [which] may be achieved through length of
stay or through evidence of a particularly close tie between
the
person and the place
”
36
and which has also been expressed as a determination “
whether
the child has a factual connection to the state, and knows something
of it, culturally, socially and linguistically.
”
37
Of
course, with small children such as A it is usually impossible to
distinguish between the habitual residence of such a dependant
child
and her custodian(s) or parent(s).
38
The parents’ habitual residence is usually that of the young
child and
vice
versa.
Accordingly, the desires and intentions and actions of the parents
must be evaluated. When adults establish an habitual residence,
either as individuals or as a parental couple, one would expect both
the existence of a “
stable
territorial link”
coupled with “
some
degree of settled purpose or intention”
39
.
Courts
with common law jurisdiction, both in South Africa
40
and the United Kingdom
41
have equated
“habitual
residence
”
with
“ordinary
residence
”
42
.
In
Central
Authority (South Africa) v A
supra
,
Jajbhay J concluded that the “
the
essential elements are that the residence is voluntary and for a
settled purpose
”.
It
is certainly possible that the parents of even a young child may
have formed an intention that she will acquire an habitual
residence
different to that of one or both of the parents. If that is the
case, then the Court should consider the parents’
“shared
intentions regarding the child’s residence”.
43
Where the parents do not appear to have been of the same mind as
regards the habitual residence of their child then the Court
returns
to the habitual residence of the parent with whom the child has a
home as also the factual connections established by
the child to the
State demanding her return.
44
The
Child – A
A
was born in Australia on 16 May 2007.
45
The alleged removal took place on 1 October 2010.
46
At that time, she had been physically present (one hesitates to say
‘resident’) during her three and a half years
of life
(some 40 months) on several continents and in several countries:
Australia
for two periods of 7 weeks (after birth)
47
and 3 ½ months (13 June - 1 October 2010);
48
Turkey
for three periods of 5 ½ months (6 July - 18 December 2007),
49
8 ½ months (11 June 2008 - February 2009)
50
and one year (15 June 2009 - 12 June 2010);
51
South
Africa for two periods of 6 months (18 December 2007 - 11 June
2008),
52
and 4 ½ months February 2009 - 15 June 2009.
53
It certainly cannot
be said that, between the age of three years and one month and three
years and four months, A formed any intention
or views regarding her
home or residence.
The greatest
duration of residence in A’s life has been in Turkey –
the longest period she ever resided in one building,
town or
country. It is the only place she has ever really spent time with
both parents together.
There
is nothing on the papers to suggest that she has acquired any
“factual
connection
”
to Australia or
“knows
something of it culturally, socially and linguistically
”.
Even
her father, who has initiated these proceedings does not seem to
have considered A ‘
habitually
resident
”
in Australia. On 11
th
August 2010 he emailed the suggestion that three year and two month
old A should come and live with him in Turkey
“for
a while
”
where she will
“learn
Turkish
”
and the next day suggests that she comes to Turkey for a period of
“
6
months
”!
A month after A has moved to South Africa, his email of 6th
November 2010 envisages that she will continue living in
South
Africa saying that, because she has an Australian passport, she
“
will
be able to escape SA when she is older”.
Throughout
November 2010, he gives no indication that either he or A or A have
any settled intentions as regards Australia and
continues to suggest
that A comes to spent time with him (presumably in Turkey) for a
three month period and makes various suggestions
whereby A should
travel the world escorting A on her visits to R.
What
is abundantly clear is that, throughout A’s short life, there
has been only one constant in her caring. This is her
mother –
A. As A has travelled the world, her most enduring, settled,
stable and known connection - i.e. her
“family
and social environment”
– has been her mother – A.
Father
– R
A’s father
has lived and continues to live a peripatetic existence dictated by
work opportunities and his relationships.
From the documentation
furnished to this Court, he appears to have had no settled
residence in any continent (save his house
in Turkey where he has
not lived but instead returned to on vacation or in between
contracts of employment), no settled country
of employment, no
settled home with family (with relationships in a number of
countries and irregular return to A and A in Turkey).
R’s approach
to the Central Authority of Australia has not been based on accurate
information and it has been opportunistically
based upon the
adherence of both Australia and South Africa to the provisions of
the Hague Convention.
R is not himself
habitually or otherwise resident in Australia.
In
his completed Application for the Return of A he claims that he
resides in Australia and provides an address in Queensland.
54
This is not his
address and he does not live there. In fact, he has not lived in
Australia since long before A was born. The photocopies
of his
passport handed up to this Court and from which a chronology of his
travels has been extracted make it very clear that Ross
has not even
been in Australia since A was born in 2007. He arrived in Australia
for that purpose only and has not since returned.
When R completed the
Sponsorship Application in August 2009 he stated that his place of
residence was in Turkey and amongst the
list of countries in which he
stated he had lived in the past ten years he did not include
Australia.
In
the various emails written by R to A he makes it very clear that he
has not been living in nor does he intend to even visit,
let alone
reside, in Australia “
I
will not be coming to Australia with you and A though would like to
meet in Turkey
”.
To his friend Greg he writes at the beginning of 2010
“I
have little connection with Australia having been away for nearly 20
years...”
55
Though R may speak
English (perhaps with Australian accent), he may have grown up in
that country, his parents may still live
there and he may hold an
Australian passport, there is no basis on which this Court can find
he is or was habitually or otherwise
resident in Australia.
Mother
- A
A’s mother
also has also lived a peripatetic life occasioned by employment
opportunities and relationships. Since A was
born in 2007 she has
lived on and off in Turkey and South Africa and Australia.
Employment has been difficult to find in both
Turkey and Australia.
She has been reliant upon the provision of a home in Turkey by R,
funding from R and undertakings of funding
by R.
She lived in Turkey
in the latter half of 2007, in 2008 (when not in South Africa) and
in 2009 (when not in South Africa). Whilst
in South Africa she
finally obtained permanent residence in Turkey in July 2009. While
in Turkey she obtained permanent residence
in Australia in January
2010. She has had the option to live and work in both Turkey and
Australia and has exercised both options.
From
the documentation available to this Court, it would appear that A’s
intentions were to utilise opportunities for work
and residence in
both Turkey and Australia. On receipt of the Australian visa in
January 2010 she wrote that a number of “
scenarios
spring to mind
”
which included time in both Turkey and Australia – she would
travel between the two countries, renew her ‘Ikamet”
in
Turkey, perhaps set up a catering business with her sister in Turkey
to earn an income, look for work with banks in Australia.
It seems
that she was trying to maintain a foot in both worlds. In part there
was impetus to leave Turkey where she had been
unable to find work
and incentive from Australia where she thought that she could find
employment.
The possibilities
of life in Australia were certainly unknown. She voiced a number of
concerns about living there. Clearly her
stay in Australia was
predicated upon obtaining employment and ensuring the financial
stability which would ensure her capacity
to support both A and
herself.
Part
of the difficulty in this Australian escapade is that A and R were
both operating in a different paradigm from that contemplated
by the
Australian authorities. On the one hand, the authorities had been
assured that A was the ‘
de
facto
”
spouse of R and that they were “
committed
to a lasting relationship
”
to each other. As sponsor, R had undertaken to
“provide
adequate accommodation and financial assistance to meet [his]
partner’s reasonable living needs… for
a period of two
years following the grant of the partner visa”
.
On the other hand, they both knew that they were not in a long term
or committed relationship and their only remaining bond
was the
parenting of A. R’s email to A when she was granted the visa
is clear –
“this
visa will affect how we and the world see our relationship. It must
be clear to all that we are not a couple”
-
and
A did not remonstrate with him or dispute this understanding. In
February 2010, long before A decided to go to Australia,
R was clear
“I
said previously that I was unwilling to cover all your costs in
Australia”
– again A did not remonstrate or dispute this understanding.
The upshot is that A was in reality a single mother with no
regular
or reliable form of support other than her own earnings whilst the
Australian authorities considered her to be in a partnership
where
her partner was responsible for her and A’s support.
From A’s
emails over the time she was in Australia it is clear that neither
appropriate employment nor financial stability
came to fruition –
she was reduced to domestic service and had to remove A from
daycare. She felt obliged to enquire
about childcare benefits.
R’s
attitude to the financial position of both A and A also changed over
the time they were in Australia. In February he
committed to
covering some, but
“not
all your costs
”.
This eased into a more uncertain and conditional indication in July
that
“If
I have a job I will provide money for A
”
and in August that “
I
will support A but have no money
”.
This hardened in August to
“I
am not prepared to support you
”.
By August 2010, he was proposing that A should “
see
the government authorities about child payments
”
and concluded in August with
“it
is unlikely you will receive any benefits”
and
“must go it alone
”.
The uncertainties
of Turkey with the ability to live in R’s home but the
inability to earn her own living had now disintegrated
into the
certainties of no support at all in Australia and the inability to
earn her own living.
A had the legal
right to live and work in Turkey and Australia and South Africa.
She attempted to do so in both Turkey and Australia.
Her departure
for Australia was clearly predicated upon a number of conditions –
paramount was that of employment, financial
security, proper care
for A during the working day, provision of a home for A and a
settled future. None of these conditions
eventuated.
Of
course there is
“no
objective temporal baseline
”
56
required for the establishment or otherwise of an habitual
residence. Such residence may be established and lost in only a
day.
57
What is required of residence, whether of short or long duration, is
that there is “some degree of settled purpose or intention”.
In the present case, A had, from the very first email in January
2010, kept her options open. She had not cut loose all legal
ties
with Turkey – hence the reference to validity of the Ikamet.
Her intentions as regards Australia may have been hopeful
but they
were cautious. Residence in and relocation to Australia was
conditional - upon success not failure, upon financial security
and
a degree of domestic comfort not anxiety and deprivation.
There
is no evidence that, in three and a half months, A established
“a
stable territorial link”
with
any part of Australia nor that, whilst there she developed “
a
particularly close tie
”
to the country or its people.
I cannot find that
A had established an habitual residence in Australia prior to her
return to South Africa.
EXERCISE OF RIGHTS OF
CUSTODY
The law
For this Court to find that the
removal of A from Australia was wrongful, it is further required
that such removal was firstly,
“in
breach of rights of custody attributed to [R] under the law of the
State in which the child was habitually resident
immediately before
the removal” and
secondly, that at the time of removal, i.e. 1 October 2010, these
rights of custody
“were
actually exercised
”
by R. The onus remains on the applicants to establish this
jurisdictional fact.
58
Rights of custody enjoy their
own autonomous definition in terms of the Convention apart of
domestic law interpretations.
59
What is encapsulated in this phrase
“rights
of custody
” is
set out in Article 5 of the Convention as including “
rights
relating to the care of the person of the child and, in particular,
the right to determine the child’s place of residence”.
The affidavit setting out the
applicable law
60
refers this Court to the Family Law Act 1975 and the relevant
provisions thereof. In summary, R has all parental responsibilities
and rights of custody in respect of A since none of these rights and
responsibilities have been removed by a Court order.
Applicant’s
Averments
In the Founding Affidavit to
this application, the Central Authority goes no further than to
state that
“...A
left her habitual residence in Australia where Second applicant was
evidently exercising rights of custody
”.
61
No details of such rights of custody or the manner in which or where
or when they were exercised is given. There is no indication
that
anyone in the Central Authority of Australia or South Africa ever
interrogated any of the facts alleged by R to determine
whether or
not this jurisdictional requirement could ever be met.
When R initiated these
proceedings by completing his Application for the Return of a Child
he stated that he, the “
requesting
individual
” was
the person
“who
actually exercised custody before the removal”.
He
stated the following factors upon which he relied to suggest the
exercise of rights of custody in respect of A:
“
1.
I
have been the sole financial provider for A and A before the
pregnancy in July 2006...
A
and A lived in my house in Turkey for the first three years of A’s
life...
I am sponsoring A’s
Australian residence visa to ensure I have access to A....”
62
The expression by R of his
intentions in respect of his daughter, his recordals of his
commitment to her, the documentation prepared
by him and the
chronology extracted from the photocopies of his passports provide
more than sufficient indication of the failure
by R to meet his own
claims to have exercised rights of custody to A or that there has
been any breach in regard to the one instance
of access which he has
exercised – Skype contact over the computer.
It may well be correct that A
dwelt in his home in Turkey for major portion of the first years of
her life - R states this to
have been
“the
first three years”
of her life. It is not in dispute that A was living in Turkey over
the periods 6th July to 18 December 2007, 11
th
June 2008 to February 2009 and 15th June 2009 to 12
th
June 2010. However, R was not living there with her. He was
working everywhere else in the world but Turkey. A’s
calculations
are that he was with A for 7 weeks in 2009 (spread over
3 trips) and 2 weeks in 2010 (spread over 2 trips) which
calculations
are not in dispute. Article 3(b) of the Convention
requires that rights of custody be exercise
d
“at the time of removal”
which was 1 October 2010. It is common cause that R did not provide
a home for A from the time of her arrival in Australia in
June 2010
until 1 October 2010 and she was certainly not living in his home in
Turkey at that time.
R claims to have been
“the
sole financial provider for A”
.
Yet his own emails record that he had ceased to make any financial
contribution towards the living expenses of A with effect
from June
2010. His email of 7
th
July 2010 records that he had sent $20 000 during June and A has
explained that this was expended on the purchase of air tickets,
shipment of personal effects, the purchase of a laptop, internet
connection fees and monthly fees, the purchase of a car, car
registration and car insurance, fuel costs, rental of property,
payment of utilities, household expenses and weekly groceries,
the
purchase and fitment of a car seat for A and the purchase of
clothing and shoes.
63
His ability to contribute toward the maintenance of A in the future
was doubtful. On 7
th
July he stated that if he had a job
“next
year
” “
I
will provide money for A”.
By
7
th
August he was asking about eligibility for child support but then
expressed resignation to the unlikelihood that such benefits
could
or would be available. Again in August he stated “
I
will support A however there is no money in the foreseeable future”.
Ross was certainly
not even one financial provider, let alone the sole financial
provider, for A as at 1 October 2010.
R claims that he sponsored the
application of A for residency in Australia in order that this would
ensure his access to A. However,
the very day that he was informed
by A of her success in obtaining the residence visa he stated that
he would not be coming to
Australia
“although
he would like to meet in Turkey”
and within the month confirmed that “
I
don’t intend to visit you and A in Australia”.
Certainly physical access between father and daughter was not within
R’s contemplation in the early portion of 2010. Thereafter
there was communication between father and daughter over Skype which
most certainly must be accepted as a form of access. There
has been
no suggestion that R has been denied continuing Skype access to A.
Indeed, the one benefit of this form of access is
that it has been
implemented whether R was in Indonesia, Cambodia, Sudan, Thailand,
Afghanistan or anywhere else in the world.
Notwithstanding the
singular definition of “rights of custody” in the
Convention, I doubt such rights are as broad
as to encompass Skype
communication between father and daughter. In any event this access
has never been denied to R.
In his Application for the
Return of A, R stated that it was his intention
“when
I return to Australia at the end of 2010 to seek access to A through
the family court....”
64
R has not pursued such rights of access. There has never been any
litigation initiated on his behalf. No access arrangements
between R
and A have been recorded by way of agreement or made the subject of
any order of Court. No Court has ever been approached
to make
arrangements with regard to access and the permission of no Court is
needed for A to travel throughout the world with
A.
Determination of habitual
residence
One aspect of “rights of
custody” to a child is the right to determine the habitual
residence of a child. In this
application, R has averred that
Australia is A’s place of habitual residence.
It is notable that R himself
disclaimed any right which he may have had to determine A’s
place of residence in Australia
or anywhere else.
In December 2006 when she was
three and half months pregnant, that it was more or less immaterial
to him where A would be born:
“Please
make up your mind where you want to have the kid. Australia is fine
with me however if it not for you please tell
me as soon as
possible. If you have the kid in SA I will not buy a car.”
Similarly he made it clear it
was more or less immaterial to him whether A remained living in
Turkey or went with her mother to
Australia: in January 2010 (after
A had acquired permanent residence visas for both Turkey and
Australia) he wrote
“living
in Turkey will most likely be cheaper than living in Australia. So
if going to Australia you must find a job soon”.
CONCLUSION -
HABITUAL RESIDENCE AND RIGHTS OF CUSTODY
In the result I am of the view
that the Applicants have not discharged the onus of showing that the
“habitual residence”
of A immediately prior to 1 October
2010 was Australia or that there has been any breach of any rights
of custody exercised by
R to A and by A to R which rights were
actually exercised prior to 1 October 2010 or would have been
exercised if it were not
for her departure
from
Australia on 1
st
October 2010.
If I am in error in finding that
A did not have an habitual residence in Australia at the relevant
time and that R was not exercising
rights of custody at the relevant
time and that, anyway, there has been no breach of any rights of
custody – then there
are three further issues with which I
should very briefly deal. The first is the discretion granted to
this Court, in terms of
Article 12, to consider whether or not A is
now
“settled in
[her] new environment”.
The
second is the Article 13 defence that A would be exposed to “
harm
”
or
“an
intolerable situation
”
should she be returned to Australia. The third is the question
whether or not R has acquiesced to A’s return to
South Africa
which possibility is provided for in Article 13 of the Convention.
IS A SETTLED IN HER NEW
ENVIRONMENT?
Where a Court determines that
the necessary jurisdictional requirements have been met and
proceedings in this Court have been
commenced within a period of one
year from the date of removal from Australia, then this Court is
obliged to order the return
of A forthwith. However, Article 12 of
the Convention continues to provide that: “
the
judicial... authority even where the proceedings have been commenced
after the expiration of the period of one year referred
to in the
preceding paragraph, shall also order the return of the child,
unless it is demonstrated that the child is now settled
in its new
environment..”
A and her mother left Australia
for South Africa on 1
st
October 2010. These proceedings were launched by the Central
Authority of South Africa on 14
th
October 2011. The consequence of this elapse of the one year period
is that this Court has a discretion to refuse the application
for
the mandatory return of A.
Ross filed his Application for
the Return of A on 14th March 2011. At that time he stated that
“A
and her mother went missing around the end of October beginning of
November 2-10
”
but went on to refer to the email from A of 5 November which gave a
telephone number which he phoned and a conversation
with her which
was
“cordial but
tense”.
He gave
no address for A and A and set down only the address of A’s
father in Cape Town. There is no averment that he ever
asked for A’s
address and was refused same. He does speculate that
“It
is very likely that once A is aware of the request for A’s
return to Australia that she and A will go into hiding”
.
65
No reason is given to explain
the lapse of four and a half months from R’s first email
communication with A in South Africa
until the time he made the
Application for the Return of A. No reason is given for the further
lapse of time to 8
th
June 2011 when the Affidavit of Applicable Law for the Return of the
Child was deposed.
66
Advocate Mansingh, appearing for
the applicants submitted at paragraph 84 of her heads of argument
that
“She and
the child were in hiding from 2 October 2010 until 12 August 2011
when tracing agents hired by the first applicant
located them in
Johannesburg”.
This
submission is not based upon any averment in any affidavit nor any
of the documents attached thereto. Since I have found
no reference
thereto in any of the material before this Court, I am most
surprised at this submission by applicants counsel.
I enquired of
her at the hearing of the basis of this submission and she shrugged
it off. It must, of course, be rejected.
In the result there is no
reasonable explanation for the (admittedly miniscule) lapse from one
year after removal in the launch
of these proceedings. I see no
reason why this Court cannot exercise its discretion in terms of
Article 12 to consider whether
or not A is
“settled
in her present environment.”
A’s answering affidavit is
replete with details of the stability afforded to A in her home,
educational and social environment.
I am most indebted to the very
full investigation conducted by Advocate G Kinghorn who was
appointed by this Court as the legal
representative of A.
Advocate
Kinghorn first met with A at her home and found a cheerful,
confident and talkative little girl who had a lot to say
about her
school activities, her social activities and her maternal relations.
The details given by Advocate Kinghorn are obviously
selective but
are telling. Understandably she expressed a particularly close
relationship to her mother - “I
never want to leave Mommy
”;
she is obviously the recipient of warmth and love
-
“I am special”;
her very obvious attempts to avoid hearing anything about her father
and Australia. Advocate Kinghorn visited A’s day care
centre
where she toured the facility and met the staff before attending
class with A. She commented most positively on A’s
happiness
and contentment in her school environment and her interaction with
her classmates.
It should be noted that Advocate
Kinghorn has received no undertaking of payment of any fees in this
matter. Nevertheless, she
devoted a great deal of time and trouble
in this investigation – for which the Court is most grateful.
In addition, Advocate Kinghorn
procured the services of a psychologist, Ms Felicity van Vuuren who
had three interviews with A
and/or her mother. The report indicates
that A has an understanding of the family unit comprising two
parents and a child but
accepts that her family currently comprises
just herself and her mother. A is closely attached to her mother
which attachment
is complicated by anxiety and insecurity.
I also understand that Ms Van
Vuuren was given no undertaking of any payment for her time and must
thank her very much for her endeavours.
A
seems, on the papers before me, to be a child who is secure in her
mother’s love, outgoing and responsive to family and
friends
and schoolmates; articulate and communicative. It is to be
expected that she is possibly overprotected by A who has
been a
single parent for so long and in the context of this litigation. It
is also to be expected that, at her young age, she
has no real
comprehension of the role which her father, R, could play in her
life. I have had regard to his later set of emails
to A and concur
that they indicate a complete lack of insight into A’s
interests or level of communication but quite understand
how R has
found himself completely cut off from A’s life - he has really
only been with her on his own visits from Afghanistan,
the Sudan and
elsewhere and maintained email and Skype contact with a baby and
then a toddler.
This rich, warm, stimulating
environment must be contrasted with the completely unknown and
unexplained environment which could
await A in Australia. R does not
live in Australia. He does not work in Australia. His Application
for her Return gives an address
in Queensland where he does not live
and apparently has not lived for over 20 years. There is no
indication in his Application
or his Replying Affidavit who would
meet A at an airport in Australia, where she would be housed, fed
and clothed. Apart from
those bare essentials, there is no mention
of who would cuddle her, laugh with her, comfort her, nurture her or
love her.
The only mention of any
environment within which R has ever tendered to care for A is in
Turkey. When he suggested that A live
with him for a while or for
three months in 2010 – when she was just over three years old
– he suggested Turkey.
This is the country where he says he is
not permitted to work? He thought that A would learn to speak
Turkish when she was barely
learning to speak English. In his
Replying Affidavit he repeats his attachment to Turkey and his
ownership of a boat (to which
reference has been in made in the
emails). In short, R is not really asking for A to be taken to
Australia. He is asking for
A to go and live in Turkey –
whilst he continues to work in Afghanistan and elsewhere.
It is inconceivable that this
Court should even contemplate ordering the removal of A from the
Republic of South Africa to Australia
where she would, presumably,
immediately have to be placed in foster care by some welfare agency.
HARM
Closely aligned to the
consideration of A’s settledness or otherwise in her new
environment, as per Article 12, is the enquiry
in terms of Article
13 whether or not A has established that
“[t]here
is a grave risk that her return would expose the child to physical
or psychological harm or otherwise place the
child in an intolerable
situation”
. The
onus rests upon A to establish this defence.
A’s counsel has submitted
that there are a number of concerns.
Firstly, R has threatened that A
would be in jeopardy should she return to Australia: “
it
would not be wise to return to Australia.
”
This Court must immediately question: With whom then would A live
and who would care for her? How is it possible that
a four year old
child could be separated from the mother who has been the only
stable influence or factor in A’s entire
life.
Secondly, there is no indication
that A would be any more likely to obtain suitable and sufficient
remunerative employment in
Australia than she was in 2010. There is
nothing to suggest that she would not confront the same financial
difficulties with
the resulting hardship and emotional trauma. In
none of the documents is there any indication from R that he would
make an undertaking
to support or maintain either A or her mother.
67
The situation is even more
complicated by the basis upon which R and A procured the residence
visa for A. She and R have been
shown not to have been in a
committed or lasting relationship at the time of her application for
a visa and his sponsorship of
same. If the sponsorship falls away
then so does the visa. If the relationship is still extant then A
may still find herself
unable to access childcare benefits.
ACQUIESCENCE
It was not argued that R has
acquiesced in A’s living in South Africa. Yet the emails from
R immediately upon his learning
that she and her mother were in
South Africa clearly indicate that that is the situation: on 6
th
November 2010, the day after he learns that she is in South Africa,
R writes of A
“she
will be able to escape SA when she is older”, the
next day he demands access for “
three
months of the year”
.
R made a number of proposals for A’s travel – all of
which involved him paying for airfares for both A and her mother.
But at no stage did he offer to come to South Africa.
It would seem that it was only
when it was clear that A was not prepared to allow three and a half
year old A to go and live somewhere
with R for three months at a
time, that R threatened, on 10
th
November 2010 to
“ask
for full custody
”
so that
“he
could make compromises”
and pursuant to this decision he took until March 2011 to initiate
the proceedings for the return of A to Australia.
Until that time, R seemed
satisfied that A live in South Africa and visit him elsewhere in the
world.
CONCLUSION
I have found that the applicants
have not shown that A had an habitual residence in Australia nor
that R was actually exercising
any rights of custody at the time of
her removal from Australia. Accordingly, the necessary
jurisdictional facts for implementation
by this Court of the
return of A to Australia have not been proven.
In addition, I am satisfied that
A is settled in her new environment. I am also satisfied that she
would be placed under intolerable
strain amounting to harm should
she be returned to Australia. Further, I am of the view that R
acquiesced in A’s removal
to South Africa.
I should comment that I have had
regard to the precepts of the Constitution of South Africa and the
overriding nature of the Children’s
Act to the Hague
Convention. It has not been necessary for me to perform a balancing
act between the
“best
interests of the child”
as
against the requirements of the Convention since I have found that
the necessary jurisdictional requirements have not been proven
and
that the defences available to the mother of the child are
satisfactorily established.
COSTS
Costs usually follow the result
but the Court obviously has a discretion to make an order that is
appropriate and having regard
to all the relevant facts. In matters
which concern children and disagreement between parents there is
usually much distress
and anguish occasioned to all family members.
This can often occasion unfortunate decisions clouded by emotion.
I believe this is one such case.
R’s own emails (to many of which I have not even made
reference) clearly indicate that
he does not really want A to return
to Australia to live with him. What he wants is for A to have to
capitulate to him and for
A to be brought to Australia after which
he will procure lengthy “access” for which purpose A
would have to travel
the world to facilitate.
I appreciate that R wants to
enjoy access to his daughter and she is certainly entitled to enjoy
access to him. It will be for
the appropriate Court to determine
what would be the appropriate arrangements for access – taking
into account A’s
age, the country in which R would be able to
see her, the arrangements R would be able to make for her care. The
frequency and
duration of such access would depend on these and many
factors. It is not on spurious averments of habitual residence and
exercise
of rights of custody demanding the return of A to Australia
that access should be arranged. R was able to travel to Dubai at the
end of 2010 – he could have visited his daughter in South
Africa on the way.
R has stated facts which he knew
were not true (eg his residence and address), he has made
allegations that were without any foundation
(eg that he feared A
would go into hiding of which there was no indication), he has
pursued litigation in bad faith (eg claiming
the return of A to a
country where he was not resident and did not intend to be and has
not been resident).
It would appear that neither the
authorities in Australia nor the authorities in South Africa saw fit
at any time to carefully
examine the basis upon which this
application was brought. All that had to be done was to ask R for
photocopies of his passport
entry and exit stamps, prepare the
appropriate chronology and then ask him a few questions.
I raised the issue of fees for
both Advocate Kinghorn and Ms van Vuuren. Advocate Mansingh’s
response ranged from pointing
out that all advocates do
pro
bono
work through to
stating that the Legal Aid Board could be approached.
I note that the Central
Authority and R E have had the benefit of the services of the State
Attorney and Advocate Mansingh at
the expense of the taxpayer. This
was not done on a
pro
bono
basis nor at
Legal Aid rates. The Central Authority of South Africa is obliged to
respond promptly and positively to a request
from the Central
Authority of Australia and it is unfortunate that the South African
taxpayer has had to fund R Everson’s
misguided initiation of
these proceedings.
I can see no reason why the
respondent in this matter, A, should be without redress in her
costs. I can see no reason why Advocate
Kinghorn should work for
free or Ms Van Vuuren give of her time and expertise for free.
ORDER
The following orders are made:
The application by the Central
Authority for the return of A is refused.
The applicants are to pay the
respondents taxed or agreed party-party costs, jointly and severally
the one paying the other to be
absolved.
The applicants are to pay the
taxed or agreed fees of Advocate G Kinghorn and of Ms Van Vuuren,
jointly and severally the one paying
the other to be absolved.
Dated at Johannesburg this 20
th
day of March 2012.
----------------------------
Satchwell
J
1
Which
has been incorporated into the Children’s Act 38 of 2005.
2
Pursuant
to a request from the Central Authority in Australia.
3
Sonderup
v Tondelli and Another
2001 (1) SA 1171
(CC).
4
See
the Preamble to the Convention.
5
Smith
v Smith
2001 (3) SA 845
SCA; Pennello v Pennello (Chief Family
Advocate as Amicus Curiae)
2004 (3) SA 117
SCA.
6
Article
12: “Where a child has been wrongfully removed or retained in
terms of Article 3 and, at the date of the commencement
of the
proceedings before judicial or administrative authority of the
Contracting State where the child is, a period of less
than one year
has elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return
of the child forthwith.
The judicial or administrative authority, even where the proceedings
have been commenced after the expiration
of the period of one year
referred to in the preceding paragraph, shall also order the return
of the child, unless it is demonstrated
that the child is now
settled in its new environment.”
7
Article
13: “...the judicial ... authority ...is not bound to order
the return ...if the person....establishes that- b)
there is a grave
risk that his return would expose the child to physical or
psychological harm or otherwise place the child in
an intolerable
situation.”
8
Article
13: “... the judicial ... authority ...is not bound to order
the return ...if the person....establishes that- a)
the
person...having the care of the person of the child was not actually
exercising the custody rights at the time of removal
or
retention...or subsequently acquiesced in the removal or
retention...”
9
Sonderup
supra.
10
Central
Authority v MV
2011 (2) SA 428
(GNP).
11
Answering
Affidavit at paragraph 8; Exhibit ‘C’ Chronology 1.
12
Page
27 of the bundle: BM1 R’s application for the return of a
child where Ross has indicated that he is employed in “emergency
and conflict responses by the United Nations and NGOs”;
Answering affidavit at paragraph 9; Exhibit ‘C’
Chronology
1.
13
Answering
Affidavit at paragraph 12; Exhibit ‘C’ Chronology 1.
14
Answering
Affidavit at paragraph 13; Exhibit ‘C’ Chronology 1.
15
Answering
Affidavit at paragraph 15; Exhibit ‘C’ Chronology 1.
16
Founding
Affidavit at paragraph 24; Answering Affidavit at paragraph 16;
Exhibit ‘C’ Chronology 1.
17
Answering
Affidavit at paragraph 17-18; Exhibit ‘C’ Chronology 1.
18
Page
134 of the bundle: Email from R to A of 3 December 2006.
19
Founding
Affidavit at paragraph 25; Exhibit ‘C’ Chronology 1.
20
Answering
Affidavit at paragraph 19 & 21-22; Exhibit ‘C’
Chronology1-2.
21
Founding
Affidavit at 26-27; Answering Affidavit at 25-26; Exhibit ‘C’
Chronology 2.
22
Answering
Affidavit at 26-27; Exhibit ‘C’ Chronology 2.
23
Answering
Affidavit at paragraph 28.
24
Founding
Affidavit at paragraph 30; Answering Affidavit at paragraph 28;
Exhibit ‘C’ Chronology 2.
25
Founding
Affidavit at paragraph 31; Answering Affidavit at paragraph 29;
Exhibit ‘C’ Chronology 2.
26
Founding
Affidavit at paragraph 31- 32; Answering Affidavit at paragraph 29;
Exhibit ‘C’ Chronology 2.
27
Founding
Affidavit at paragraph 31; Answering Affidavit at paragraphs 29-30;
Exhibit ‘C’ Chronology 2.
28
Answering
Affidavit at paragraph 46; Exhibit ‘C’ Chronology 3.
29
Page
138 of bundle: Sponsorship form for a partner to migrate to
Australia.
30
Page140
of the bundle.
31
Page143
of the bundle: Sponsorship form for a partner to migrate to
Australia.
32
Page
145 of the bundle: Sponsorship form for a partner to migrate to
Australia at paragraph 55 “Undertaking
”
“I agree:... to ensure that adequate accommodation is
available to them on arrival in Australia or, if necessary
to
provide accommodation for up to 2 years from arrival in Australia,
or the two years following grant of your partner’s
visa if
your partner is applying to Australia...”
and at page 148 “Sponsorship Undertaking”:
“you agree to provide adequate accommodation and financial
assistance as required to meet your partner’s reasonable
living needs. If your partner is applying outside of Australia, this
assistance would cover the 2 years in Australia.
”
33
See
Senior
family Advocate, Cape Town, and Another v Houtman
2004 (6) SA 274
(C);
Central
Authority (South Africa) v A 2007(5) SA 501 W
and
Neulinger
& Shuruk v Switzerland [2010] ECHR Grand Chamber.
34
S
v S (Minor: Abduction: Illegitimate Child)
[1990] 2 All ER 1968
HL
at 965
quoted with approval in
Houtman
supra
.
35
Houtman
supra
at paragraph [9].
36
Houtman
supra
at paragraph [9].
37
In
Re
F (A Minor) (Child Abduction)
[1992] 1 FLR 548
at 551.
38
In
Re
F
supra
at 551 Butler-Sloss stated
‘a young child cannot acquire habitual residence in isolation
from those who care for him.’
39
Houtman
at paragraph [9].
40
Central
authority (South Africa) v A
2007 (5) SA 501
:
41
R
v Barnett London Borough Council
[1982] Q.B. 688
;
Ex
parte Shah
[1983]
2 AC 309
(HL)
at 340, 342 and 349.
42
‘
A
man’s abode in particular place or country which he had
adopted voluntarily and for settled purposes as part of the regular
order of his life for the time being, whether of long or short
duration.’
43
Re
F (A Minor)
supra
.
44
See
A
supra
-
“
Where
the parents do not have a common habitual residence, the habitual
residence of the child follows that of the parent with
whom he has a
home at the time. This approach would be consistent with the
dependency approach because the child’s habitual
residence is
held to be the same as the common habitual residence of the parent.”
45
Founding
Affidavit at paragraph 6 & 25; Answering Affidavit at paragraph
at 19; Exhibit ‘C’ Chronology 1.
46
Founding
Affidavit at paragraph 34; Answering Affidavit at paragraphs 99.2
and 66; Exhibit ‘C’ Chronology 3.
47
Exhibit
‘C’ Chronology 1; Answering Affidavit at paragraphs
22-23.
48
Founding
Affidavit at paragraph 33-34; Answering Affidavit at paragraph at
46; Exhibit ‘C’ Chronology 1.
49
Founding
affidavit at paragraph 27; Answering Affidavit at paragraph 22;
Exhibit ‘C’ Chronology 1-2.
50
Founding
affidavit at paragraph 29; Answering Affidavit at paragraph 28;
Exhibit ‘C’ Chronology 1.
51
Answering
Affidavit at paragraphs at 30 & 46.
Exhibit
‘C’ Chronology 2-3.
52
Answering
Affidavit at paragraph at 25;
53
Founding
Affidavit at paragraph 33-34; Answering Affidavit at paragraph 46;
Exhibit ‘C’ Chronology 3.
54
Page
23 of Bundle: BM1.
55
See
annexure Z6: R’s email to his friend Greg of 14 January 2010.
56
Houtman
supra
at paragraph [9].
57
In
Re
B (Minors) (Abduction) (No.2)
(1993) 1 FLR 993
at 995 quoted with approval in
De
Lewinski and Legal Aid Commission of New South Wales v
Director-General New South Wales Department of Community Services
1997 FLC.
58
Pennello
supra.
59
See
Neulinger
supra.
60
Pages
56 – 58 of the pleadings.
61
At
paragraph 37.
62
Page
27 of bundle: BM1.
63
Answering
Affidavit at paragraph 52.
64
It
is notable that R was not in Australia at the time of A’s
departure from Australia or subsequent thereto – according
to
the photocopies of his passport certified at the Australian Embassy
in Bangkok, Thailand.
65
It
is noted that R had emailed A advising that he would be on holiday
and could not be contacted until the end of the month of
October
2010. He does not suggest that he made any attempt to contact
either A or A while he was on holiday or that A would
have had any
means of contacting him.
66
Pages
56 and 57 attached to Founding Affidavit.
67
See
the approach of the courts in
WS
v LS 2000 (4) SA104 (C);
and
in
De
Lewinski
supra.