S. -v- S., [2009] IEHC 345 (2009)

Docket Number:2009 9 HLC
Party Name:S., S.
Judge:Mac Menamin J.






JUDGMENT of Mr. Justice John MacMenamin delivered the 17th day of July, 2009.

  1. The Hague Convention on the Civil Aspects of International Child Abduction 1980 (the "Hague Convention") was incorporated into Irish law by the Child Abduction Enforcement of Custody Orders Act 1991. Its objectives (as set out in article 1 of the Convention) are a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; b) to ensure that rights of custody and access under the law of one Contracting State are respected in other Contracting States.

  2. Pursuant to article 3 of the Convention, the removal or retention of a child is considered wrongful where:

    "… it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone under the law of the State in which the child was habitually resident immediately before their removal or retention …"

    The issues of "habitual residence" and consent to removal and retention lie at the heart of this application.

  3. On 13th February, 2009 the applicant caused an application to be made to the central authority for Australia under the terms of the Convention for the enforcement of his rights of custody to the minor named in the title herein (hereinafter called "R.") and the return of R. under article 12 of the Hague Convention to the jurisdiction of the courts of Australia.

  4. The applicant and the respondent were married to each other on 8th December, 2007 in Manly, New South Wales, Australia. They lived together for a period of time after their marriage until late 2008 when they came to Ireland in circumstances later described.

  5. It is undisputed that pursuant to the laws of Australia the applicant and respondent have equal parental custody rights in respect of their dependent child. The applicant contends that the respondent's retention of R. in Ireland is unlawful under the law of Australia and under the Hague Convention in that it is a frustration of the applicant's custody rights.

  6. The applicant and respondent met for the first time in Australia only in June, 2007. They are in their twenties. The respondent had been on a long term working visit to Australia. The respondent became pregnant within a month, that is to say, in July 2007. The parties say they finally ascertained that she was certainly pregnant in or about September, 2007. They married that December. R. was born on 22nd April, 2008, in New South Wales and is now 14 months old. She is currently living with her mother in Cork. Her father returned to Australia in January 2009, but attended court for this hearing.

    The respondent's background

  7. The respondent grew up in Ireland. She travelled to Australia in the year 2005. She remained there, travelling round the country until the end of 2006 or beginning of 2007. In February 2007, she obtained employment there in a company called Gardner Australia who are an I.T. research company. Her job involved working on the sales of I.T. events. Her salary was approximately AU$50,000 per year or its equivalent in Irish euro, 25,000. She met the applicant in June of that year and married him six months later in December.

    The applicant's background

  8. The applicant is a teacher. He has continued to acquire post graduate qualifications subsequent to obtaining his primary degree. He completed a Bachelors Degree in teaching and physical education at Newcastle University, Australia. He enrolled for the degree of Master of Learning Innovation at Queensland University of Technology for which he received post a graduate scholarship. At the times relevant to these proceedings he was employed by the New South Wales Department of Education and Training as a physical education teacher. The applicant by reason of his own background has a particular interest in engaging indigenous Australian students, and also students from a low socio-economic background. He has an extensive background in sport and has coordinated, participated in, and coached a number of sports at various levels, in particular in the area of rugby union and rugby league.

  9. When the couple discovered that the respondent was pregnant in September, 2007, they decided to live together and moved to a one-bedroom apartment in Manly, New South Wales. They had discussions about what they would do if their relationship did not work out as it was a new one. I find they both agreed that if they could not live as a couple they would share custody of R.. The respondent says she wished for R. to be born in Ireland but could not do so as she was precluded from flying home by reason of a medical condition during pregnancy.

  10. During her first trimester, she was diagnosed with Deep Vein Thrombosis in her right leg. This was determined to be spontaneous with no clear cause found. This condition was a significant complication to a normal pregnancy and the respondent required daily injections of blood thinners. The diagnosis also prevented the respondent from working which meant that for the period of her pregnancy the applicant was the sole breadwinner. It also precluded any possibility of her flying home to Ireland.

  11. In January, 2008, the parties moved house to the central coast of New South Wales in anticipation of an employment transfer for the applicant. From January to April of that year the applicant continued to work at Mosman High School until he was transferred to another school, the Hunter School of Performing Arts. The address of the parties' residence ultimately was in Buff Point, New South Wales.

  12. From the time that the parties commenced to reside at Buff Point in 2008 the respondent's situation was isolated. Her ties in Australia were mainly in Sydney. She felt the lack of access to family support in Ireland. The respondent's family had only been able to visit the couple for a period of roughly one month when R. was approximately six weeks old.

  13. There is an issue as to whether or not the respondent suffered from post-natal depression after R.'s birth. The applicant says that it was for this reason he suggested that the parties might spend a period of time in Ireland where she could receive the support of her family and that R. and he would have the opportunity to meet C.'s extended family and network of friends in Ireland. The respondent says their intention was to move to Ireland on a long term basis.

  14. In or about December, 2008, the parties decided that they would come to Ireland. The applicant's case is that he committed himself to being in Ireland for at least the period of the Christmas holidays, roughly a six week period, during which time he would continue to receive an income from home. In this period he hoped he would be able to discover if he enjoyed Ireland, and the respondent and himself would be able to asses employment opportunities here. He says that if this did not work out that the agreement was that they would return to Australia after the six week period. I think the joint plan actually went further than that, as is shown even by the applicant's own affidavit. The evidence is that both parties intended to spend a significant period of time here, perhaps up to a year.

  15. The applicant says that he would be the primary care-giver during the period in Ireland, that he might obtain employment teaching casually, and that the respondent would seek employment once R. was no longer completely dependent upon her. He had organised the extended period of parental leave without pay from his Australian teaching position during 2009 so that it would be possible to stay in Ireland for a longer period assuming that all went well. He says this leave was flexible and allowed him to resume work with no more than one month of notice. He states that he also had the option of returning to part time work while fulfilling any parental responsibilities.

  16. To come to Ireland in December, 2008 the parties bought one way tickets. The applicant says these were expensive but they wanted to travel to Ireland close to Christmas, and had no fixed return date in mind. He says that the respondent had assured him that she had friends who worked...

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