FAMILY LAW ACT 1975 IN THE FAMILY COURT OF AUSTRALIA AT ADELAIDE No. AD 1668 of 1993 BETWEEN: THE POLICE COMMISSIONER OF SOUTH AUSTRALIA (State Central Authority) AND RICHARD JAMES BENNETT (Father) CORAM: Judicial Registrar Forbes DATE OF HEARING: 25 May 1993 DATE OF JUDGMENT: 4 June 1993 JUDGMENT APPEARANCES: Mr A Moss (instructed by Crown Solicitor) appeared on behalf of the State Central Authority Mr R Hogan (instructed by David Peacock) appeared on behalf of the father. CATCHWORDS: Application under Family Law (Child Abduciton Convention) Regulations for order for return of child Question of Habitual Residence Consideration of Acquiescence "Grave Risk" Intolerable Situation Age and degree of maturity of child under Convention Application Allowed. ================================================================ This is an application brought under the Family Law (Child Abduction Convention) Regulations for an order that the child Jasmine Leigh Noda-Bennett born 15th December 1983 (hereinafter referred to as "the child") be returned to New Zealand. The application is brought for the purposes of the regulations by the Central Authority which, in this instance, is the Police Commissioner of South Australia. Presently, the child is residing at Hope Forest via Willunga in this State with the father who is the respondent to the application. The mother resides at Henderson, New Zealand and it is into her care that the Central Authority seeks an order for the child to be returned to New Zealand. The mother was born at Auckland, New Zealand on 15th March 1955. She is presently 38 years of age. The father was born at Shepparton, Victoria on 21st November 1959. He is presently 33 years of age. The application was filed in this Registry on l9th February 1993. The day before, the father filed a Form 8 application for orders, including an order for interim custody of the said child. The application of the Central Authority came on for mention before the court on 24th February 1993. On that date consent orders were made in the following terms: "1. That the father, do not remove the infant child JASMINE LEIGH NODA BENNETT born on the 15th day of December 1983 from the State of South Australia. 2. That the father do surrender forthwith to the Registrar of this Honourable Court all current passports relating to himself and the said child. 3. That the names of the father and the said child be placed on the Pass Alert System operated by the Federal Police of the Commonwealth of Australia. 4. That the father do file such answering affidavits and other documents as he may be advised within 14 days of the date hereof. 5. That pursuant to the provisions of Section 62A of the Family Law Act 1975 a Welfare Officer's report be prepared and provided as to the wishes and perceptions of the said child as to her future placement and custody and that such conference be held at 10.00 a.m. on the 8th day of March 1993. 6. That the application by the father set for the 9th day of March 1993 be adjourned to the 22nd day of March 1993. 7. That further consideration of this matter be adjourned to the 22nd day or March 1993 at 10.00 a.m. before the Judicial Registrar." Counsel for the Central Authority observes that the father has failed to give compliance with paragraph 4 of the order and objects to the father being permitted to rely upon an affidavit filed 18th February 1993, being the affidavit filed in support of the father's application for interim custody. I admitted the affidavit subject to the objection. I will now determine whether I should accept the affidavit. Mr Hogan for the father, whilst conceding that the father's affidavit does not give effect to paragraph 4 of the abovementioned order submits that I have a discretion to accept it (as I would ordinarily have such a discretion for the purposes of exercising jurisdiction under the Family Law Act) and that Regulation 15(1B) is not mandatory in its requirement that a defense to an application shall be by way of a Form 2A. I might say that a failure to accept the affidavit of the father would, in all probability, result in a further adjournment of the application and given that the application should be determined on the affidavits if at all possible and summarily, Gazi and Gazi (1993) FLC 92-341 at pg 79,623, I determine that I should have regard to the father's affidavit. The history to the matter is that the mother and father commenced a defacto relationship at Sydney in 1982 and moved to Adelaide the following year when Jasmine was born in the December. In 1985 the parties separated but later reconciled, although only for a short period. The father had regular access to the child between 1985 and 1987 when the parties were residing in Adelaide. The mother then moved to Sydney. In 1986 the mother commenced a relationship with a Jason Barnes. A child, Steeley Barnes was born of that relationship in 1990. The mother acknowledges that it was a difficult relationship but not such as to impose a threat to the safety of the child Jasmine. In April 1991 the mother traveled to New Zealand in circumstances which were unexpected and which caused her to make arrangements with the father that she would leave the child with him during the period of her absence. At first the mother considered that her absence would be a temporary departure from Australia. The father says that 2 weeks after the mother left Australia she advised him that she would not be returning to Australia. She had the child, Steeley Barnes with her. Her relationship with Jason Barnes had been severed. In circumstances which are not entirely clear she arranged with the father that he would send Jasmine to her in New Zealand and Jasmine was delivered to her in August 1991. The father says as to that by his said affidavit: "22. I suggested to Val at that time that Jasmine be allowed to live with me but Val would not agree saying that she wanted to start a new life in New Zealand. When Jasmine came back later that year she told me that Val had already commenced another relationship with another man." The child remained living with the mother in New Zealand. By arrangement between the parents Jasmine came to Australia in the period December 1991 to February 1992 being her summer 1991/92 school holidays and spent that time with the father. Again, by way of arrangement between the parents the child traveled to Australia on 3rd December 1992 to spend her summer school holidays. Her return flight to New Zealand was booked with her leaving Australia on 28th January 1993. She had otherwise remained with her mother in New Zealand throughout 1992. On 28th January 1993 the father failed to return the child. She remains with him at the date hereof. On 9th February 1993 the mother obtained an interim order for custody in the District Court at Henderson, New Zealand. The order was made ex parte. Under New Zealand law and pursuant to the provisions of the Guardianship Act 1968 the mother has a right of custody exercisable jointly with the father as to the child. Article 3 of the Convention provides: "The removal or retention of a child is to be considered wrongful where -- (a) 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 the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention". Article 5 of the Convention says: "For the purposes of this Convention (a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;" Regulation 2 of the Family Law Regulations provides that: ""rights of custody" has the same meaning as in the Convention, and includes rights arising by the operation of law or by reason of a judicial or administrative decision or by an agreement having legal effect under a law in force in a convention country;" Mr Hogan argues that the rights of custody under New Zealand law can have no application to the mother and cannot be determinative of the mother's "rights of custody" because the child was not habitually resident in New Zealand for the purposes of the Convention. He says that in the period from April 1991 to December 1992, a 20 month period, the father had the child for 7 months in Australia and the mother had the child for 13 months in New Zealand. He says the child was born in Australia and but for the period August 1991 to December 1991 and February 1992 to December 1992 has lived her life in Australia. He points to the evidence of the father which alleges an intention on the part of the father to secure an arrangement or agreement with the mother permitting the child to live in Australia and he argues that the mother cannot unilaterally determine what should constitute the child's residence. He says that in these circumstances It cannot be said that the child is habitually resident in New Zealand for the purposes of Article 3 and 4 of the Convention. He says that an ordinary meaning should apply to "habitual", that is, "customary, constant or continual" as per the Concise Oxford Dictionary or "constantly repeated" or "customary" according to the Encyclopedia Brittanica 1965. Mr Moss for the Central Authority says that a picture of shared residence between Australia and New Zealand for the child "does violence to the facts". He says the facts show that the child had lived continuously with the mother in New Zealand since August 1991 save for the period of the Christmas school vacation 1991 and 1992 when it was agreed she would spend time with the father in Australia. Those factual matters, he says, points to the conclusion that New Zealand was the habitual residence of the child. It is apparent in the history of the matter that the father sent Jasmine to New Zealand to join the mother in August 1991. He concedes that he did so in pursuance of an agreement or an arrangement with the mother. His affidavit, paragraph 22, also includes a concession by the father that he was permitting the child to travel to New Zealand and to thereafter remain with the mother upon the basis that the mother was intending to start a new life in that country. Equally, the father makes it clear that he had reservations about that course of action and he was using his best endeavours to convince the mother that Jasmine should be permitted to live with him. The mother says that the child came to her in New Zealand as it was her wish that upon becoming settled in New Zealand that the child would join her there. These matters would seem to constitute the factual basis upon which the child in the first instance traveled to and took up residence at New Zealand. No doubt it was unexpressed but the arrangements for the child to go to New Zealand were an expression of the lawful exercise by the mother of her rights of custody. In Dicey and Morris: The Conflict of Laws 10th edn, Vo.1, p. 144 appears the following: "Habitual residence has long been a favourite expression of the Hague Conference on Private International Law. It appears in many Hague Conventions and therefore in English statutes giving effect to them, but is increasingly used in statutes not based on international conventions. One of its first uses at the Hague was in the context of the custody of children, largely because of the artificiality of the notion of domicile as applied to young children. No definition of habitual residence has ever been included in a Hague Convention; this has been a matter of deliberate policy, the aim being to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems." A. E. Anton in his article on "THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION" says: WMH FN 01 "The Convention applies only to a child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The choice of the criterion of the habitual residence of the child was scarcely contested. It was clearly desirable to select a single criterion. That of the child's nationality seemed inappropriate because the State with the primary concern to protect a child against abduction is that of the place where he or she usually lives. In some systems the criterion of domicile would point to that place, but in others domicile has a technical character which was thought to make its choice inappropriate." The International and Comparative Law Quarterly, Vol. 30, pg 537 at pg 544. In C. v. S. (A Minor) (Abduction) (1990) 2 FLR 442 House of Lords, Lord Brandon said: "if he or she leaves ... with a settled intention not to return ... but to take up residence in country B instead, such a person cannot, however, become habitually resident in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so." A period of under 6 months was determined to be sufficient to establish habitual residence for the purposes of the Convention in that matter. As a general observation I note the comments of Lord Denning MR in Re P.G. (An Infant) (1965) 1 Ch 568 at p.585 as reported in Re S. (A Minor) (1991) 2 FLR 1 where he says: "But then we are faced with the question, what is the ordinary residence of a child of tender years who cannot decide for himself where to live, let us say under the age of 16? So long as the father and the mother are living together in the matrimonial home, the child's ordinary residence is the home and it is still his ordinary residence, even while he is away at boarding school. It is his base, from whence he goes out and to which he returns. When father and mother are at variance and living separate and apart and, by arrangement, the child resides in the house of one of them -- then that home is his ordinary residence, even though the other parent has access and the child goes to see him from time to time. I do not see that a child's ordinary residence, so found, can be changed by kidnapping him and taking him from his home, even if one of his parents is the kidnapper. WMHFN 02Quite generally, I do not think the child's ordinary residence can be changed by one parent without the consent of the other." The comments of Lord Scarman in R v Barnet London Borough Council; Ex Parte Nilish Shah (1983) 2 AC 309 at 343 are often referred to on the questions of ordinary residence. He there said: "Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinary resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration." And it is worth mentioning, I think, that for the purposes of the Family Law Act 1975 (Section 4) "ordinarily resident" is defined as including "habitually resident". In Brandon and Brandon (1990) FLC 92-153 at pg 78,072 Bulley J determined that the question of what constituted a child's habitual residence was a matter of fact and degree in each case. And see G and O (1990) FLC 92-103 where Barry J adopted a similar approach. Each of these cases concerned the Convention. Questions of lawfulness of purpose and continuity as to a residence, do not arise in this matter. Nor is there any suggestion that New Zealand was not the place of residence of the child immediately before her retention. Mr Moss points to Articles 3 and 4 of the Convention and says that the time at which a determination must be made as to where Jasmine was habitually resident was the time immediately before her retention. Mr Hogan's argument as to habitual residence is dependent upon a consideration of a much longer period, a period which includes a time before the child took up residence in New Zealand. I accept the argument of Mr Moss. The commentators agree that habitual residence as a criteria was chosen by the member States so as to afford protection to children who are ordinarily resident within the State. As the expression suggests this is not a state of affairs which could be achieved in a day and the expression, I think, accepts that there would be continuity as to habitation. To include the period sought by the father would seem unwarranted on the authorities and contrary to the spirit and intention of the Convention. At the risk of repeating myself, I say that at the time of Jasmine moving to the mother in New Zealand in August 1991 there was no disagreement as between the parents that she would thereafter live with her mother in New Zealand and that New Zealand would thereafter be her home. The father may have had hopes of convincing the mother to agree to permit Jasmine to return to him in Australia on a permanent basis but that was an unfulfilled desire on his part at that time and nothing more. WMH FN 03 I did not understand Mr Hogan to argue that the mother, at the time of Jasmine's retention, had no rights of custody arising under the provisions of the New Zealand law. It was accepted for the purposes of his argument that the mother had rights of custody arising under the provisions of Guardianship of Infants Act. The order of District Court of Henderson made 9th February 1993 would seem to be confirmatory of the exercise by the mother of her rights of custody under that Act. It is also accepted that for the purposes of the Convention it is the retaining by the father of the child from the jurisdiction of the Court of New Zealand rather than from the custody and care of the parent with which Article 3(a) is concerned. Re H and another (minors) (abduction: custody rights) (1991) 3 All ER pg 230. Once it is determined that Jasmine was habitually resident in New Zealand immediately prior to her retention, there being no issue that the mother had a right of custody in the child under New Zealand law nor that the child had been retained out of the jurisdiction of the New Zealand courts then it is apparent that pursuant to the terms of the Convention her retention by the father in Australia was wrongful. Mr Hogan then refers to and relies upon Regulation 16(3)(a), (b) and (c). He does not disagree that the onus is upon him to satisfy the court as to matters raised in that regulation. Gsponer, C.J. v Director General, Dept of Community Services, Victoria (1993) FLC 92-001, Police Commissioner of South Australia v Temple (1993) FLC 92-365 at pg 79,827. Regulation 16(3)(a) says: "the person, institution or other body having the care of the child in the convention country from which the child was removed was not exercising rights of custody at the time of the removal of the child and those rights would not have been exercised if the child had not been removed, or had consented to or acquiesced in the child's removal;" This provision raises the question of whether the mother acquiesced in the retention by the father of the child in Australia as and from 28th January 1993. The mother deposes to the following matters: "40. On 28 January 1993, when Jasmine was to return to New Zealand, the Respondent informed me he would be keeping her and if I endeavoured to come to Adelaide to see her and discuss matters he would not let me have access to her and would place a 'restraining order' on me. 41. On the 29th January 1993 I spoke with the Respondent again. He advised me that Jasmine would be staying in Adelaide with him and that he might let her come home for a visit in June 1993. However he did tell me that before he would allow her to travel to New Zealand I would have to sign an agreement granting him custody and undertaking to return her to Adelaide. I was shocked by his attitude and did not agree to this. The same day I consulted my solicitor and commenced these proceedings pursuant to the Hague Convention. Those proceedings were filed on 3rd February 1993. 42. On the 5th February 1993 my solicitor received a letter from the Respondent's solicitor, annexed and marked "C", which sets out the Respondent's proposals for Jasmine's care. Annexed and marked "D" is my solicitor's letter dated 9th February 1993 in response to those proposals, stating that they were not accepted." See affidavit of mother filed 14th May 1993. The solicitors letter Annexure "C" referred to in paragraph 42 of the affidavit is a letter proposing that Jasmine be permitted to remain with the father until at least the 3rd June 1993 and that she see a counsellor as to her attitude and wishes. The mother's reply Annexure "D" leaves no doubt as to her rejection of this proposal. The letter includes the following statements: "Ms Noda considers that your client's arbitrary decision to retain Jasmine is not in her best interests at this point in time. She has made that clear to your client over the past few weeks when he has requested that Jasmine remain with him for this year. At no stage has Mrs Noda consented to this arrangement. Ms Noda requires the return of Jasmine to her care in New Zealand as soon as possible to prevent any further disruption to her schooling." There seems little room on these facts to argue that the mother agreed to the retention by the father of the child on 28th January 1993. See Temple's case (supra) at pg 79,828. Regulation 16(3)(b) says: "there is a grave risk that the child's return to the applicant would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;" The father says that he and Jasmine enjoy a good relationship and that Jasmine enjoys an equally good relationship with his defacto wife Ingrid and the children of that relationship, Bess aged 3 years and Maude aged 13 months. The father says that he lives on a property owned by his parents and that Jasmine has returned to the Willunga Primary School, the school that she attended between May and August 1991. The father is emphatic that Jasmine would not only not want to return to her mother in New Zealand but that she wished to live with him in the family unit at Willunga. He says that Jasmine complains of having had an unsettled and unhappy life with the mother and that she complains of the mother having hit her. He said that the child complained of her mother having formed a new relationship and of her being pregnant again. As can be seen by paragraph 5 of the order of 24th February 1993 the parties consented to a report from a Welfare Officer. The Welfare Officer furnished a report on 18th March 1993. Under "Summary and Conclusions" the Welfare Officer says: "Jasmine repeatedly said she wants to stay with her father. She perceives her life with him and his new family, as well as at school and with her friends here, as more enjoyable and stimulating than with her mother. Although not wishing to live with her, Jasmine made it clear, she does love her mother and wants to visit her. According to Jasmine, her mother, presently, is far too busy with her own life to give her the time and attention she needs. Jasmine also resents the imminent arrival of her mother's new baby, seeing this event as further diminishing her availability. She also sees herself as not getting on with her mother's partner as well as she would like to. Jasmine is aware of her father's attachment to her. He has also expressed to her his doubts about her future access to him, should she decide to return to her mother. Irrespective of this, Jasmine insists, her own need to be with her father is the deciding factor for her wish to stay with him. In an emotional display, Mr Bennett, in his interview, made his feelings for his daughter quite clear. It is suspected that his own need to have Jasmine with him could have contributed toward her decision to stay with him. The degree to which she might have been influenced is difficult to estimate. Awareness of possible influences could, but need not, necessarily, cast doubts on the validity of Jasmine's wishes." Significantly, the Welfare Officer draws attention to the limitations of the report because of the absence of the mother and for the same reason, expresses uncertainty as to the weight which should attach to the wishes of the child. The mother denies that Jasmine has been hit with the frequency alleged by the child. The mother says that she has smacked Jasmine only as a means of punishment and then only after other forms of chastisement had failed. The mother specifically answers two allegations which the child makes of having been struck with a skipping rope and an electric cord. The mother points to a good relationship having developed between the child and the mother's partner, Eruera and of his having now moved in to live with her. The mother doesn't doubt the closeness of the relationship of Jasmine and her brother, Steeley. Jasmine, so far as the mother is concerned, was looking forward to coming home to the birth of the new child and the start of the new school year. On request from the father the mother says she asked Jasmine in about October 1992 if she wanted to stay with the father and that Jasmine said that she did not and desired to return to the mother at the conclusion of access. The onus is upon the father to establish that there is a grave risk that the return of the child will expose her to physical harm or to psychological harm or otherwise place the child in an intolerable situation. It is only necessary for the father to satisfy the court as to any one of these provisions. Director General of Family and Community Services v Davis (1990) FLC 92-182, Gsponer, C.J. v. Director General, Dept of Community Services, Victoria (1989) FLC 92-001. "Grave risk" in this context is not to bring with it considerations of what may be in the best interests of the child. Those are matters to be determined by the District court at Henderson, New Zealand. See Temple (supra) pg 79,829. The child complains of having suffered violence at the hands of her mother. The mother concedes that she has had occasion to hit the child but only as a means of chastisement. Neither the evidence as to the child's allegations nor the admissions of the mother suggest that there is a grave risk of the child being exposed to physical harm at the hands of the mother. As to the allegation the there is a grave risk that the child, if returned would be psychologically harmed, I must say that there would seem to be no evidence, not evidence that is by a qualified person as to this allegation. The attitude of Jasmine as evidenced in the Welfare Officer's report suggests that she is going to be unhappy at the prospect of return. There is nothing, however, that I can see nor as to which I was directed which could constitute evidence of a grave risk of her suffering psychological harm by returning to New Zealand. For the purposes of determining what constitutes to "an intolerable situation" as provided for in Regulation 16(3)(b) with respect I adopt the comments of Murray J in Temple's case, that is, that intolerable means "unendurable" or "insufferable". It can be expected that Jasmine will have some difficulty settling in with the mother. The mother's circumstances are now changed in that she has recently had a new child and the child's father is now living with her in a defacto relationship. But the mother earnestly seeks the return of Jasmine and her defacto previously enjoyed a good relationship with the child. Importantly too, I think, is that the mother concedes that the expressions of attitude presently attributable to Jasmine are made at a time when Jasmine is under the influence of the father. Whether Jasmine presently is saying no more than what her father would wish to hear cannot for present purposes be determined although what she is saying is not suggestive that she cannot make the necessary readjustment upon her return to the mother. The evidence of Jasmine's progress at the Henderson Primary School, New Zealand shows that she is of an outgoing nature and an asset in her class. Her report indicates that she was an attentive student who was achieving satisfactory progress, both academically and socially. I would not expect Jasmine to experience any undue difficulty in returning to her old school. The final argument for the father is based on Regulation 16(3)(c), namely, that: "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child's views;" The father argues that the child is entitled to her opinion. I understand him to be saying that his care of the child from April 1991 to August 1991 and subsequently has allowed the child to draw a comparison between life with her mother in New Zealand and life with him in Australia. He accepts the limitations implicit in the Welfare Officer's report but says that it contains the reasoned decision of the child. He relies upon the passage (bottom of page 4): "When asked whether she could give any reasons for not wanting to return to her mother, Jasmine said: "Because ... I do love my Mum, but I want to stay with my Dad. Mum hits me quite a lot, and I don't want her to have another baby and another relationship ... she's already got enough" (babies)." The mother also refers to the Welfare Officer's report: the passage at page 4: "Jasmine said she would feel "heaps sad", if she were sent back to New Zealand. The worst thing about going back was that " ... Mum would never let me go back and see my Dad ... I might not see Dad again ... that's what I know ... I think she would do". On further discussion, Jasmine said her father had once suggested that "may-be Mum won't let me see him again". Here she hastily added that her father "doesn't mind if I say I want to go back - he hasn't tried to convince me to stay here." The mother deposes to her disappointment at the father having discussed these matters with Jasmine and of his having put into the child's head that as likely as not she (the mother) would stop all future access. The mother also deposes to having had a conversation with Jasmine (at the request of the father) some 2 months before she was due to travel to Australia when she asked Jasmine if she would like to stay or remain with the father. The mother says the child indicated quite firmly that she did not want to stay and that she wanted to come home after the holidays. The mother says she passed that information onto the father. Mr Moss says that there is a total paucity of evidence as to what may constitute the degree of maturity of the child. He refers to Temple's case (supra) where Murray J says at page 79,830: "On the question of the child's wishes, I take note of the dicta of Bracewell J. in Re R (A Minor) (Abduction) November 1991 Family Law 475. There the learned judge said that where a child had attained an age and degree of maturity at which it was appropriate to take account of his or her views, and where he or she objected to being returned to a Member State, the Court has the discretion conferred by Art. 13 of the Convention to refuse to order the child's return to that State, the burden of proof being on the defendant to establish the exception. She went on to say, however, that there must be more than a mere preference expressed by the child before the Court would consider exercising its discretion. The word "object" imported a strength of feeling which went far beyond the usual ascertainment of the wishes of the child in a custody dispute." With respect I agree with these comments. Neither the age of Jasmine nor the evidence as to her attitude, such as it is, persuades me that I should form an opinion as to the seriousness of her wishes. Regulation 16(1) provides that subject to Regulation 16(3) a court shall order the return of a child pursuant to an application made for that purpose. As I have said I remain unsatisfied as to the matters which the father has raised in Regulation 16. It follows that I Must order the return of Jasmine to New Zealand forthwith. -------------------- 1. Available on Hilton House BBS as ANTON.ART 2. See also cases decided under the Uniform Child Custody Jurisdiction Act, 9 ULA 3(a)(1) "Home State" and in particular Curtis v Curtis (Miss. 1990) 574 So.2d 24, 29-30. 3. See 9 Uniform Laws Annotated (ULA) 2(5) for a definition of "Home State" which is similar to the term "Habitual Residence". See also 9 ULA 3(a)(1) and the COMMENT thereto. But see also Dunlap by Wells v Buchanan (1984) 741 F.2d 165, a diversity case wherein it was held that, absent an order of the court, the domicile of a child is that of its father.