K.W. v P.W.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bronagh O'Hanlon |
| Judgment Date | 02 September 2016 |
| Neutral Citation | [2016] IEHC 513 |
| Court | High Court |
| Docket Number | Record No: [2016/18HLC] |
| Date | 02 September 2016 |
[2016] IEHC 513
THE HIGH COURT
FAMILY LAW
O'Hanlon J.
Record No: [2016/18HLC]
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991
AND
IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
AND
IN THE MATTER OF R., AND E. (MINORS)
Family – The Child Abduction and Enforcement of Custody Orders Act 1991 – The Hague Convention on the Civil Aspects of International Child Abduction – Wrongful removal – Habitual resident
Facts: The applicant/mother sought an order for the return of the children to the jurisdiction of Australia from the jurisdiction of Ireland. The applicant contended that after her marriage with the respondent/father, they resided at all times in Australia and thus, the children were habitually resident in Australia. The applicant further alleged that the respondent, without her consent, removed the children to the jurisdiction of Ireland on the pretext of attending a wedding and thus, there was a wrongful removal in contravention of art. 3 of the Hague Convention. The respondent argued that the decision to shift base from Australia to Ireland was consensual and that he had made all the necessary arrangements to integrate the children into the environment in Ireland.
Ms. Justice Bronagh O'Hanlon refused to make an order for the return of the children to the jurisdiction of Australia. The Court held that the test to decide the place of habitual resident was facts-based and that the views of the children could be considered if they had attained sufficient understanding and maturity. The Court, applying the approach of Finley Geoghegan J in E.B. V D.E. [2015] IECA 104, held that the intention of the parties coupled with the integration of the children in the place of residence must be taken into account while determining the issue of habitual residence. The Court found that it was the mutual decision of the parties that they would move from the jurisdiction of Australia to the jurisdiction of Ireland as evident from the facts comprising the resignation of the parties from their permanent jobs, quick sale of properties in Australia and the admission of children in pre-school in Ireland. The Court observed that since there was a change in place of habitual residence, and thus, art. 3 of the Hague Convention, was inapplicable.
This case concerns an application for the return of the children, R. born on 2nd July, 2011 and E. born on 11th September, 2013 to the jurisdiction of Australia pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The application is set out in the special summons issued 18th July, 2016. Australia is subject to the Hague Convention.
This case first came before the Court on an emergency basis on 13th July, 2016 by way of ex parte docket and this Court made orders restraining the removal of the children from the jurisdiction of this Court pending further order.
The applicant mother is an Australian citizen. The respondent father is an Irish citizen. The parties were married to one another on 8th September, 2010 in Australia. Both children were born in Australia. The respondent travelled to Ireland on 6th May, 2016 with the child R. and the applicant followed with the child E. on 2nd June, 2016.
On 8th July, 2016 the respondent applied ex parte to Kilkenny Circuit Court and obtained an order restraining the applicant from removing the children from the jurisdiction. He commenced proceedings seeking sole custody of the children. A stay has been put on the Circuit Court proceedings in accordance with the Hague Convention and the Child Abduction and Enforcement of Custody Orders Act 1991 pending the decision of this Court. On 13th July, 2016 the applicant commenced proceedings in Australia seeking custody of the children.
On 18th July, 2016, this Court ordered that Dr. Anne Byrne-Lynch, Consultant Clinical Psychologist, do interview and assess the child R. in order to give an opportunity for the voices of these children to be heard. The report was dated 22nd July, 2015 and set out the views of the child R., the child E. was considered too young for any such assessment. Dr. Byrne-Lynch considered R. to be a bright, friendly child with appropriate language skills and age appropriate interests. She outlined that as a child who has just turned five years old, he could be expected to be able to state some view about where and with whom he feels secure and speak about every day preferences but he could not truly consider broader alternatives or understand the implications of views or choices he might express. The child R. is reported as understanding that he is on holiday in Ireland and that he will return to Australia with his mother, brother and grandmother.
This Court also received certain undertakings from the parties on 18th July, 2016 with regard to behaviour and an undertaking from the applicant not to pursue the proceedings before the Australian Courts pending determination of the within proceedings.
This Court specially listed these proceedings for hearing on 27th July, 2016 within two weeks of the commencement of the within proceedings.
An affidavit dated 12th July, 2016 was filed on behalf of the applicant setting out the basis for the application under the Hague Convention. A further affidavit was sworn by the applicant dated 13th July, 2016. These affidavits set out that the applicant left her employment in Australia but that she could return to that employment if and when she returns to Australia. She alleged that the respondent suffers from alcohol dependency and regularly consumes alcohol to excess. The parties commenced cohabitation in Australia in June, 2010 and married in September, 2010. They lived in Australia throughout their marriage and have property there.
It is accepted that in or around August, 2015 the parties booked a family holiday to Ireland for a period between 2nd June, 2016 and 3rd July, 2016 with the intention of visiting the respondent's family and attending a wedding of the respondent's friend for whom he was to be best man. The applicant alleged that, on 3rd May, 2016, the respondent informed her that he was not going to work and that he wanted to return to Ireland immediately and that he feared for his life were he to remain in Australia. The respondent departed with the child R. on 6th May, 2016. The applicant decided that she would follow the respondent to Ireland using the original tickets that had already been purchased and she stated that she felt she had little option. The applicant alleged that the respondent has behaved with violence and contempt towards her since she arrived in Ireland. It is stated in the affidavit that the respondent reassured the applicant that they could return to Australia if she wished to do so and that the applicant only agreed to move to Ireland on the basis of the respondent's agreement that they would return if she did not enjoy living in Ireland.
The applicant remained in Australia after the respondent left with the child R. on 6th May, 2016, to commence the sale of their property in Australia. That sale of property B. was due to have been completed in August, 2016 and the parties retain another property Y. which the applicant stated was always intended to continue to be the family home. It is averred in the affidavit that they decided not to sell property Y. on 20th June, 2016 in case they wanted to return to Australia. It is further averred by the applicant that the respondent placed considerable pressure on the applicant to come to Ireland. When the parties came to Ireland they moved into what the applicant describes as a ‘granny flat’ on a farm owned by the respondent's father with the respondent's brother. The respondent enrolled the child R. in the local school in Ireland and the applicant alleged that she was not consulted about this decision. The respondent also set up a bank account in Ireland in the joint names of the parties and applied for PPS numbers for the entire family.
The applicant alleged that there was an incident at the wedding which the parties attended on 9th June, 2016. It was alleged that the respondent was intoxicated and he was aggressive towards her upon his return to their hotel room in the early hours of the morning. She called the hotel security and asked them to take the respondent to another room. The respondent sent an apologetic text message to the applicant the following day.
Another incident occurred on 2nd July, 2016 when it is alleged that the respondent was verbally abusive towards the applicant in the ‘granny flat’. It was further alleged that the respondent physically restrained the applicant to the point of bruising her arms. The situation escalated, An Garda Síochána were called and the respondent took the children's passports. The Gardaí informed the parties that, because the children had witnessed the altercation, the Child and Family Agency would be notified. The applicant, along with her mother, sister and the two children left and went a hotel on 3rd July, 2016. Since then, the applicant has moved with the children to a hotel in Dublin. The applicant's mother has remained in Ireland with her and has been her support here. The applicant further stated that her mother played a significant role in supporting her while they were living in Australia, especially when the children were first born.
She asserts that the children have, at all times, been habitually resident in the jurisdiction of Australia and that they have been wrongfully retained in this jurisdiction within the meaning of Article 3 of the Hague Convention.
A further affidavit was...
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K.W. v P.W.
...High Court (O'Hanlon J.) on 2nd September 2016 in which she held that the children were now habitually resident in this jurisdiction: see KW v. PW [2016] IEHC 513. The net effect of that judgment was that the Irish courts – rather than their Australian counterparts – would have jurisdiction......
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Re NY (A Child) (1980 Hague Abduction Convention) (Inherent Jurisdiction)
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