AUSTRALIA – SMITH – 1997 STATE CENTRAL AUTHORITY (for the father, SMITH) v AYOB
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State Central Authority (Smith) and Ayob (Australia 1997)Matter No ML 2111 of 1997
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O/N 7714
FAMILY COURT OF AUSTRALIA
DRAFT JUDGMENT
By KAY J
At MELBOURNE On FRIDAY, 28 FEBRUARY 1997
Matter No ML 2111 of 1997
STATE CENTRAL AUTHORITY and AYOB
HIS HONOUR:
The application is brought by the State Central Authority
seeking an order for the return of a child pursuant to the
provisions of the Family Law (Child Abduction Convention)
Regulations (“the Regulations”) which Regulations purport to
give operation and effect to Australia’s obligations under the
Convention on Civil Aspects of International Child Abduction
(“the Convention”). Both Australia and the United States are
countries that have ratified the Convention and it has been in
operation between the United States of America and Australia
since 1 July 1988.
BACKGROUND
The factual background to this dispute, as best I can glean it
from the limited material I have before me, is as follows:
Sue Ayob married Dennis Smith in Arkansas on 22 July 1989.
There was one child of the marriage, Sasha Nicole Smith, who
was born on 21 February 1990. The parties separated in
Arkansas where they were living in February 1994. Following
some litigation between them, orders were made in the Chancery
Court of Paluski County Arkansas (Second Division) in May of
1994, when the parties executed a document headed: `Property
Settlement Agreement’, which provided inter alia that the wife
would have custody of the child and set out certain visitation
rights of the husband which were basically alternate weekends
from Friday to Sunday and two evenings during the week, with
some summer holiday visitation and other special events
visitation. The agreement included the following:
The wife will be allowed to take the minor child
to her home country, Malaysia, once a year for a
period of up to three weeks, upon giving advance
notice of at least one month to the husband. The
husband shall be entitled to no visitation with
the minor child during these periods, but may
exercise reasonable telephone visitation at his
expense. During his summer visitation period, the
husband may take a vacation with the minor child
for up to one week period during which the wife
will not have visitation.
The agreement then provided for the payment of child support
and dealt with the division of some chattels and some debts of
the parties.
The Court order granting a decree for dissolution of the
marriage included the following:
It is further considered, ordered, adjudged and
decreed that the property settlement agreement
between the parties is hereby incorporated in this
decree and is made a part hereof and is in all
things approved by the Court and adopted by the
Court as its order.
The mother was born in Malaysia in January of 1965 and found
herself in the United States of America as a student, studying
from 1983 to 1987 in Arkansas. She asserts that the
relationship between herself and the husband was unsatisfactory
because of his use of marijuana and that, following an assault,
she separated from him in February of 1994. She said that once
the parties were separated it was possible for them to have
reasonable discussions and they reached an accord in terms of
the property agreement to which I have already made reference.
She asserts that the father exercised his right to weekend
visitation but not for weekday or summer holiday visitation.
She asserts that she had no social support in America as her
family were in Malaysia, and that she told the father she
proposed to return to Malaysia. She tried to persuade him to
allow her to go but she was “without success”. She says he had
no objection to the child being taken to any other American
state. She chose unilaterally to move the child to Malaysia
without the permission of the father on 10 July 1995.
She says that after she arrived in Malaysia there was a
telephone discussion with the father wherein it was agreed that
he would cease paying child support and would apply the costs
of the child support to visiting the child in Malaysia. She
says further that in July 1996 he came to Malaysia and stayed
with her and the child for a short period and in September of
that year his mother and aunt came and visited the child.
The father says that once he learned that the child had been
surreptitiously taken away he was very upset. He received a
phone call from the mother about a week later saying she was
going to live permanently in Malaysia and that he asked for the
child to be brought back to America, which request was refused.
He then got in touch with the prosecuting attorney of the State
Department in Arkansas and was informed that as Malaysia was
not a party to the Convention there was nothing he could do to
compel the child’s return to America. He was told to stay in
touch with the child and that, if ever the child went to a
Hague Convention country, he should take action. He then moved,
on 7 November 1995 in the Chancery Court, Puluski County,
Arkansas, for an order that the mother be found in contempt and
that child support payments should cease.
On 7 November 1995, an ex parte order was made freezing any
child support payments held by the Court. The contempt
application was subsequently adjourned to 29 May 1996. On 29
May 1996, the child support obligation was abated. The husband
says the Court refused to deal with applications for contempt
and what the husband described as a custody application until
he had physical possession of the child.
I pause to interpose that according to the code of Arkansas, it
is an offence under paragraph 5.26.501 to interfere with
visitation and, if the minor is taken, enticed or kept without
the State of Arkansas, it is a class D felony, (whatever that
means). Presumably that offence itself is something in addition
to any right of the Court to deal with somebody in contempt of
its orders.
The father says that he went to Malaysia and whilst he was
there a number of steps were taken to ensure the child was not
taken out of Malaysia. His wife took control of the passport,
a stop order was placed on exits in Malaysia, and his contact
with the child was supervised by a maid at her home. He
asserts that the wife’s father was “in politics in Malaysia”
and that the wife had told him and he accepted that he was “an
extremely powerful man”. He said there was no possibility as
far as he was concerned of making a successful custody
application in Malaysia and, if he tried to do so, it might
jeopardise any future relationship he would have with the
child. He asked the wife that the child be brought back to
America and this was refused.
In January 1997, the mother contacted the father, indicating
that she wanted to come to Australia, and required the father
to sign a visa application in respect of the child. Her
evidence was that she had met an Australian in Malaysia and
decided to marry him some time in 1997 and wanted to come to
Australia with Sasha to meet his family and to sound out
prospects of employment for both her and her fiance.
She faxed the father a form that was required by the Australian
government and received it by return fax duly signed. The form
reads as follows:
Letter of consent.
We, the parents of Sasha Nicole Smith, hereby
consent to her to travel to Australia with Serina
Suarina Ayob – mother – to visit Melbourne
Australia for a period of 2« weeks. We undertake
to pay all her expenses and guarantee her
departure from Australia at the end of the
authorised stay period.
The document is signed by the father and dated 21 January 1997
and signed by the mother and dated 20 January 1997. I have
left off from my reading of the document the instructions as to
how the form is to be filled in. The document contains the
following footnote:
If one parent is not available to give consent,
please state reason below. If parents are
divorced, photocopy of custody papers (bring along
the originals).
The father said that he agreed to the child being brought to
Australia because he was hopeful that Australia was a
Convention country and that, immediately upon learning that it
was, he filed an application with the State Central Authority
in the United States which application was made on 27 January
1997. The application led to the mother and child being
apprehended at Tullamarine airport at Melbourne earlier this
month.
Interim orders were made by this court to ensure that the child
remained in Australia and under the watchful eye of the State
Central Authority until such time as the matter could be heard.
The State Central Authority seeks an order requiring that the
child be returned to the United States of America pursuant to
the provisions of the Regulations. The mother resists the
making of the order.
THE HAGUE CONVENTION
I move to the relevant legislation and the law that has
developed around it. The Hague Convention has been described
as one of the most significant examples of international
co-operation presently functioning. It assumes that the
removal of a child from its country of habitual residence in
breach of the custodial rights of all persons who have such
rights, either by court order or operation of law (including
the right to determine where the child should live), is
contrary to the welfare of the child and that it is appropriate
that issues relating to the welfare of the child should be
determined by the state where the child was habitually resident
before it was either wrongfully removed from that state or
alternatively kept away from that state by a wrongful
retention.
The scheme of the Convention, which has been enacted into
Australian law in the Regulations, is that when a child has
been determined to be either wrongfully removed from a
Convention country to another Convention country or wrongfully
retained in a Convention country when it ought to have be
returned to another Convention country, the judicial and
administrative authorities of the Convention country in which
the child is located are obliged to order the prompt return of
the child back to the country from whence it has been
wrongfully removed or wrongfully retained unless any of the
criteria and exceptions set out in the Convention and the
Regulations are met. Even then there may exist a discretion to
order the return of the child.
Insofar as there is an inconsistency between the Regulations
and the Convention and insofar as that inconsistency does not
remove the Regulations from outside the scope of the
Commonwealth’s power to make such Regulations, (being an
exercise of its external affairs power), then according to the
observations of Kirby J in De L v Director General New South
Wales Department of Community Services and Another (1996) FLR
92-706 at 83,468:
[T]he duty of an Australian court would clearly be
to comply with the plain language of a valid
Australian law.
In this circumstance that law is the Regulations rather than
the Convention.
However, the majority in De L said at 83,449:
Schedule 1 to the regulations (the Schedule) sets
out the English text of the Convention which is
generally known as the Hague Convention. The term
“Convention”, as used throughout the regulations,
is defined in terms of the text set out in the
Schedule (reg 2(1)). The provisions of the
Regulations thus have to be read with those of the
Convention.
The exceptions that the Regulations set out for the return of
the child can be found in a number of areas within the
Regulations.
Was there a wrongful removal?
The first issue that arises in this case is whether there was a
wrongful removal of the child from a Convention country to
Australia. There is no issue in this case of wrongful
retention. The child was never taken from America with the
permission of the father.
The child’s ties with Australia at the moment are extremely
transitory. It is merely the presence of the child within
Australia that gives this case any particular Australian
flavour.
An application may be made to the court in Australia by a
foreign State Central Authority in respect of a child that has
been wrongfully removed to Australia from a Convention country.
The issue of wrongful removal is to be determined in accordance
with to the matters set out in the Regulations, in particular
Regulations 3 and 4.
Regulation 3 provides that:
A reference in these Regulations to the removal of
a child is a reference to the removal of that
child in breach of the rights of custody of a
person…if, at the time of removal, those rights:
(a) were actually exercised, either jointly or
alone; or
(b) would have been so exercised but for the
removal of the child.
Regulation 4 defines “rights of custody” as including:
…rights relating to the care of the person of
the child and, in particular, the right to
determine the place of residence of the child.
It is necessary to determine according to the law of Arkansas
whether or not the father in these proceedings had a right of
custody within the meaning of the Regulations and the
Convention to determine the issue of whether the child had been
wrongfully removed from Arkansas by the mother. According to
the limited research that I have been able to undertake, there
is no law of Arkansas that defines the rights of parents to
determine movement of children or otherwise and the matter
falls to the issues of common law.
In Gooch v Seamans 6 Ark App 219 (1982), a decision of the
Court of Appeal of Arkansas, it was held that, as a general
rule, a parent having custody of a child is ordinarily entitled
to move to another state of the United States of America and
take the child to the new domicile. However as “custody” has a
broader meaning for the purposes of the Convention and the
Regulations, it is necessary to determine whether, in the
circumstances of the case, there existed a right to determine
the place of residence of the child. To do that, I need to
look, in my view, to the court order embodying the agreement
between the parties and, in my view, the agreement is clear.
The parties had agreed that the mother did not have the right
to remove the child to live permanently in Malaysia and,
indeed, could only visit Malaysia if she complied with the
terms of the agreement, already referred to. In particular,
that she would be allowed to take the child to her home country
once a year for a period up to three weeks, upon giving notice
of at least one month to the husband. It is clear, from that
stipulation, that the father continued to exercise a right to
determine the place of residence of the child, insofar as that
place of residence was to be somewhere outside of the United
States of America, in particular, Malaysia.
In my view, in the circumstances of this case, there was a
wrongful removal of the child within the meaning of the
Convention and within the meaning of the Regulations.
When had the wrongful removal occurred?
The next issue to be determined arises because of the
provisions of Regulation 16. At this point, the Regulations
and the Convention appeared to diverge. Article 12 of the
Convention states:
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 the
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.
The significance of Article 12, in my view, is that time
commences to run from the date of the wrongful removal; that
is, the removal of the child from the contracting state in
breach of the custodial rights of the other parent. This
literal view accords with the Explanatory Report of the Hague
Convention by E. Perez-Vera, Actes et documents de la
Quatorzieme session, vol. III, 1980, page 426, where the
reporter says as follows:
106. Article 12 forms an essential part of the
Convention, specifying as it does those situations
in which the judicial or administrative
authorities of the State where the child is
located are obliged to order its return. That is
why it is appropriate to emphasise once again the
fact that the compulsory return of the child
depends, in terms of the Convention, on a decision
having been taken by the competent authorities of
the requested State. Consequently, the obligation
to return a child with which this article deals is
laid upon these authorities. To this end, the
article highlights two cases; firstly, the duty of
authorities where proceedings have begun within
one year of the wrongful removal or retention of a
child and, secondly, the conditions which attach
to this duty where an application is submitted
after the aforementioned time-limit.
107 In the first paragraph, the article brings a
unique solution to bear upon the problem of
determining the period during which the
authorities concerned must order the return of the
child forthwith. The problem is an important one
since, in so far as the return of the child is
regarded as being in its interests, it is clear
that after a child has become settled in its new
environment, its return should take place only
after an examination of the merits of the custody
rights exercised over it – something which is
outside the scope of the Convention. Now, the
difficulties encountered in any attempt to state
this test of `integration of the child’ as an
objective rule resulted in a time-limit being
fixed which, although perhaps arbitrary,
nevertheless proved to be the ‘least bad’ answer
to the concerns which were voiced in this regard.
108 Several questions had to be faced as a result
of this approach: firstly, the date from which the
time-limit was to begin to run; secondly,
extension of the time-limit; thirdly, the date of
expiry of the time-limit. As regards the first
point, i.e. how to determine the date on which
the time-limit should begin to run, the article
refers to the wrongful removal or retention. The
fixing of the decisive date in cases of wrongful
retention should be understood as that on which
the child ought to have been returned to its
custodians or on which the holder of the right of
custody refused to agree to an extension of the
child’s stay in a place other than that of its
habitual residence. Secondly, the establishment of
a single time-limit of one year (putting on one
side the difficulties encountered in establishing
the child’s whereabouts) is a substantial
improvement on the system envisaged in article 11
of the Preliminary Draft drawn up by the Special
Commission. In fact, the application of the
Convention was thus clarified, since the inherent
difficulty in having to prove the existence of
those problems which can surround the locating of
the child was eliminated. Thirdly, as regards the
terminus ad quem, the article has retained the
date on which proceedings were commenced, instead
of the date of decree, so that potential delays in
acting on the part of the competent authorities
will not harm the interests of parties protected
by the Convention.
To sum up, whenever the circumstances just
examined are found to be present in a specific
case, the judicial or administrative authorities
must order the return of the child forthwith,
unless they aver the existence of one of the
exceptions provided for in the Convention itself.
109 The second paragraph answered to the need,
felt strongly throughout the preliminary
proceedings,41 to lessen the consequences which
would flow from the adoption of an inflexible
time-limit beyond which the provisions of the
Convention could not be invoked. The solution
finally adopted 42 plainly extends the
Convention’s scope by maintaining indefinitely a
real obligation to return the child. In any event,
it cannot be denied that such an obligation
disappears whenever it can be shown that `the
child is now settled in its new environment’. The
provision does not state how this fact is to be
proved, but it would seem logical to regard such a
task as falling upon the abductor or upon the
person who opposes the return of the child, whilst
at the same time preserving the contingent
discretionary power of internal authorities in
this regard. In any case, the proof or
verification of a child’s establishment in a new
environment opens up the possibility of longer
proceedings than those envisaged in the first
paragraph. Finally, and as much for these reasons
as for the fact that the return will, in the very
nature of things, always occur much later than one
year after the abduction, the Convention does not
speak in this context of return `forthwith’ but
merely of return.
The issue in this case is confused by the provisions of
Regulation 16(1) which read as follows:
Subject to subregulations (2) and (3); on
application under regulation 14, a court must make
an order for the return of a child:
(a) if the day on which that application was
filed is less than 1 year after the day on which
the child was removed to, or first retained in,
Australia; or
(b) if the day on which the application was filed
is at least 1 year after the day on which the
child was removed to, or first retained in,
Australia unless the court is satisfied that the
child is settled in his or her new environment.
At first blush, the Regulation appears to have time running
from the moment the child actually reaches Australia. In this
particular case, this is somewhat crucial to one aspect of the
case because it is common ground that the child has now been in
Australia only a matter of weeks and that is clearly less than
one year after the date upon which the child first entered
Australia. If time runs from arrival in Australia, the State
Central Authority submits it is unnecessary to consider the
issue of whether the child is settled in his or her new
environment.
In my view, whilst such an interpretation accords with a
literal reading of the words of Regulation 16(1), the
Regulations have to be read in the context of the Convention
and the intention of the nations adopting it. The intention of
the Convention is clearly to require the mandatory return of
the child within a year of its wrongful removal or retention
and to require the mandatory return of the child after the
expiration of a year, unless it can be demonstrated that the
child has settled in his or her new environment. In my view,
the critical date is the date of wrongful removal or wrongful
retention and not the date of the appearance in Australia for
the first time of the child.
Regulation 2(1C) includes in the definition of a child who is
removed from a Convention country to Australia:
A child who is first removed to another country.
The fact that this child went via Malaysia to get to Australia
does not make it any the less a child who has “been removed to
Australia”. However the temporal elements of the phrase “less
than one year after the day on which the child was removed
to… Australia” need to be read, in my view, with reference to
“the removal” and the addition of the words “to Australia”
merely give Australia sufficient jurisdiction to ground an
application. There does not seem to me to be any capacity for
an Australian court to deal with a child who has never been in
Australia or who is not currently present in Australia and
accordingly the Regulations introduce the reference to a
removal “to Australia” to provide a necessary nexus between the
wrongful removal or retention and an exercise of power by an
Australian administrative or judicial authority.
In those circumstances, this is a child to who Regulation 16
(1)(b) applies, one year having passed since the child’s
removal and before an application was made to the Australian
authorities concerning that removal. In those circumstances,
the second element of Article 12 and Regulation 16(1)(b) comes
into play, namely, whether the Court is satisfied that the
child is settled in his or her new environment.
If the child has settled in her new environment is there a
discretion to exercise?
I digress for a moment to say that whilst there is some
suggestion in some English cases that a finding of “settled in
a new environment” still leaves a discretion in the Court to
order the return of a child, I must respectfully disagree with
those views. If those views are simply saying that by operation
of common law or local statute law, as distinct from Hague
Convention law, the Court has jurisdiction to order the return
of a child, then there is no dispute between myself and the
other learned judges. If, however, it is suggested that within
the four walls of the Hague Convention there is room for
discretion in respect of a child who has met the criteria of
being more than one year away from the wrongful retention or
removal and now settled in its new environment, then in my view
there is no such room. In my view, the Convention and the
Regulations have no further application in respect of such a
child.
It is suggested in Re N (Minors)(Abduction) (1991) 1 FLR 413 at
417, by Bracewell J, that there is a discretion under Article
18 as to whether or not a child should be ordered to be
returned even if it is demonstrated that the child has settled
in a new environment. Her Lordship said:
So the position under the Convention, so far as
this case is concerned, is that it is mandatory to
return the children even though more than one year
has expired since their abduction, unless it is
demonstrated that the children are now settled in
their new environment. In the event of the court
being so satisfied, then a discretion arises under
art. 18 as to whether or not to order the return
of the children.
Similar observations were made by Purchas LJ in Re S (A
minor)(Abduction) (1991) 2 FLR 1 at 25.
Article 18 of the Convention states:
The provisions of this chapter do not limit the
power of a judicial or administrative authority to
order the return of the child at any time.
In my view, Article 18 does no more than indicate that the
Convention makes up part of the law of a country exercising
Convention powers and that it does not seek to codify the
entire law relating to dealings with children about whom it is
argued there are jurisdictional questions or about whom it is
argued their welfare requires them to be taken to another
country. In my view, if I concluded that this was a Hague
child who had been wrongfully removed or retained, and that
more than one year had passed prior to application being made,
and I was satisfied the child was settled in her new
environment, that would be the end of the matter under the
Hague Convention and under the Regulations.
There is no application before this Court seeking the exercise
of Family Law Act jurisdiction, or cross-vested common law
jurisdiction, seeking the return of the child to the United
States.
Is the child settled?
The issue of whether the child Sasha is settled in her new
environment is not an easy issue in this particular case,
mainly because there is virtually no evidence about it, and in
any event the mother states that it is her proposal to remove
the child from Malaysia in the foreseeable future and bring the
child to Australia, thus disrupting whatever elements of
settlement there are in the child’s present situation. In
Graziano v Daniels (1991) 14 Fam LR 697 at 703, the Full Court
of this Court, dealing with the test to be met in being so
satisfied, said that:
The test must be more exacting then that the child
is happy, secure and adjusted to the child’s
surrounding circumstances.
Their Honours cited with approval the observations of Bracewell
J in Re N (Minors)(Abduction), supra, where her Lordship said
the abductor must:
…establish the degree of settlement which is
more than mere adjustment to surroundings.
They indicated that a settlement issue had two constituent
elements, both a physical element and an emotional element, and
that the settlement needs to relate to the new environment;
that is, the place, home, school, people, friends, activities
and opportunities, and not simply to the relationship with the
custodial parent which has always existed.
Some examples of the operation of this provision can be seen in
the following cases. In Rodriguez v Bucholzer 7 0b 573/90, an
Austrian Supreme Court refused to return a three year-old child
to Spain some two years after her abduction, there being
evidence that the child spoke no Spanish and was living
comfortably and happily with her mother and maternal
grandparents on an Austrian farm. In Re N (Minors)(Abduction)
supra, Bracewell J ordered the return of two children to
Texas, notwithstanding they were content to be with their
mother in the United Kingdom. In Graziano v Daniels supra, the
children were returned to California from Tasmania. Finally, in
Coffield 644 NE 2d 662, a decision of the Ohio Appeals Court,
(see: WWW.Hiltonhouse.com) the Ohio Appellate Court ordered
the return of a child to Australia three years after the child
had been abducted by the father from Australia.
There appears to be a tendency in some of the cases to
differentiate between an abducting custodian and an abducting
non-custodian. There is a danger in so doing. The Convention
and the Regulations draw no distinction. In ZP v PS (1994) FLC
92-480, a decision of the High Court which dealt with a
non-Hague abduction, Deane and Gaudron JJ indicated (at 81,013)
that a court exercising common law power might be more hesitant
to order the return of an abducting custodial parent than an
abducting non-custodial parent.
In my view, such considerations can and ought play little part
in the exercise of any discretion that arises under the Hague
Convention. Certainly that ought not to be an issue in
determining whether there has been a wrongful removal or
determining whether or not the child is settled in its new
environment.
It is clear from the passage that I made reference to in Perez
-Vera’s explanatory report and from the literal words of both
the Regulations and the Convention, that there is an onus upon
the person who asserts that the child is settled in its new
environment to establish that fact. In this case I have
absolutely no material at all on the point. There is no
complaint from the father that the child is unsettled nor any
assertion by the mother that it is settled. I simply have the
fact that the child was removed to Malaysia by the mother
without the father’s consent, that he has seen the child and he
has been in contact with the child and no more.
I do not know whether the child pines for the father or does
not pine for the father. I do not know whether the child has
become imbued with the culture of her surrounds. I do not know
whether the child is suffering from American cultural
withdrawal symptoms. I know nought in respect of those matters
and they are further clouded by the fact that the mother is
choosing, in any event, to elect to remove the child from that
culture and bring it to this culture. I must therefore
conclude, on the material before me, that I am not satisfied
that the child is settled in his or her new environment.
Accordingly the child is therefore a child whose return I must
order unless the child fits within one of the other exceptions
which are referred to in Regulation 16(2) and (3). If the
child does not fall within any of the Regulation 16(2)
exceptions but does fall within any of the Regulation 16(3)
exceptions then I have a discretion in the matter.
Regulation 16(2) provides as follows:
The Court must refuse to make an order under
sub-regulation (1) if it is satisfied that:
(a) the removal or retention of the child is not
a removal or retention of the child within the
meaning of these Regulations; or
(b) the child was not an habitual resident of a
Convention, country immediately before his or her
removal or retention; or
(c) the child had attained the age of 16; or
(d) the child was removed to or retained in
Australia from a country that, when the child was
removed to or first retained in Australia was not
a Convention country; or
(e) the child is not in Australia.
It is not suggested by Mr Scarfo on behalf of the mother that
any of the Regulation 16(2) exceptions apply.
Acquiescence
I move to Regulation 16(3) which sets out grounds upon which
the Court may refuse to make an order for mandatory return if a
person opposing return establishes on of the grounds. Again,
clearly, there is an onus upon the person opposing the return,
who I can for sake of convenience call the abducting parent.
The Regulation 16(3) ground that was relied upon in this case
was that the person making application for the return of the
child, the father:
Had consented or subsequently acquiesced in the
child being removed to or retained in Australia.
Again the reference to Australia after the removal causes some
degree of conflict with the words of the Convention. The
exceptions set out in Article 13 of the Convention make
reference to acquiescence in “the removal or retention”. As I
have already indicated, the act of removal is the crossing of
the international border of the country from where the child
should not have been removed in the first place; that is from
the United States of America. So, really, the issue is whether
the father consented to or subsequently acquiesced in the child
being removed from the United States of America rather than
being removed to Australia.
The acquiescence is said to take two forms. It is said that
the non-action of the father once the child reached Malaysia,
coupled with his visit to Malaysia, represents one aspect of
the acquiescence whereby it can be said that he has tacitly
agreed that the child should stay with the mother or that he
has accepted the wrongful removal. Alternatively, the signing
of the immigration consent is said to be clear evidence of
actual or tacit acquiescence in the child being lawfully in the
mother’s care outside of the United States of America.
The document itself, however, really says no more than as
follows, and I read it from the perspective of the father
rather than in the actual words contained which contain with
both parents:
I, the father of Sasha Nicole Smith, hereby
consent to her to travel to Australia with her
mother to visit Melbourne for a period of 2« weeks
and I undertake to pay her expenses and guarantee
her departure from Australia at the end of the
authorised period.
Here is a father who is seeking an opportunity to invoke the
Convention. In order for it to be invoked the child needs to
be in a country which has introduced the Convention into its
domestic law. The father, not knowing whether or not Australia
was a Convention country but believing it might be said: “of
course I give permission to the Australian Government to allow
my child to travel to Australia and I guarantee that I will
arrange the departure of the child from Australia at the end of
the authorised stay period”. The father did not want the child
to remain in Australia; he had no intention of it remaining in
Australia. He wanted the child to come to Australia in the
mother’s care so that he could commence these proceedings. In
my view, in the circumstances of this case, the letter of
consent does not amount to him having acquiesced in the
wrongful removal by the mother of the child.
More problematic is his non-action for the past 18 months or
so. The issue of acquiescence is not one that is capable of
being simply determined. The English courts have been most
active in writing on the issue of acquiescence. There have
been discernible moves in the English courts in respect of this
issue. Many of the cases are difficult to reconcile. Re A
(Minors)(Abduction: Acquiescence) [1992] 2 FLR 14 involved the
removal of children from Australia to the United Kingdom. The
father being unaware of the Hague Convention wrote a letter to
the mother saying:
I suppose there is nothing I can do about it
therefore I have to accept your decision.
Later the same day, he learnt of the Hague Convention and then
commenced proceedings under it. The English court held that he
had acquiesced by the writing of the letter. They held that
acquiescence was a single specific action and that once that
action had occurred the provisions of Article 13(a) had been
carried out. Once you have acquiesced, effectively, you cannot
un-acquiesce.
There was an attempt in subsequent English cases to retreat
somewhat from that position and to stiffen the test of
acquiescence. I make reference to Re AZ (A Minor)(Abduction:
Acquiescence) [1993] 1 FLR 682 where Butler-Sloss LJ said that:
Acquiescence had to be conduct which was
inconsistent with the summary return of a child to
a place of habitual residence.
In Re AZ supra, Sir Donald Nicholls V-C defined the test as
being:
Whether the parent had conducted himself in a way
which would be inconsistent with him later seeking
a summary order for the child’s return. A
consideration is to be undertaken…by looking at
all the circumstances.
It was suggested that in the application of that test to this
case one needs to look at the circumstances of the child being
taken to a non-Convention country and the father being told
there was nothing he could do about it.
In Re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819,
the Court of Appeal dealt with a period of eight months of
inactivity by a father who did not know he could do anything
about it. After citing several of the authorities in this
area Waite LJ said at 831:
There is a common thread that runs through all
those passages. It can be stated in this way.
Acquiescence is primarily to be established by
inference drawn from an objective survey of the
acts and omissions of the aggrieved parent. This
does not mean, however, that any element of
subjective analysis is wholly excluded. It is
permissible, for example, to inquire into the
state of the aggrieved parent’s knowledge of his
or her rights under the Convention; and the
undisputed requirement that the issue must be
considered `in all the circumstances’ necessarily
means that there will be occasions when the Court
will need to examine private motives and other
influences affecting the aggrieved parent which
are relevant to the issue of acquiescence but are
known to the aggrieved parent alone. Care must be
taken by the Court however not to give undue
emphasis to those subjective elements: they remain
an inherently less reliable guide than inferences
drawn from overt acts and omissions viewed through
the eyes of an outside observer. Provided that
such care is taken, it remains within the province
of the judges to examine the subjective forces at
work on the mind of the aggrieved parent and give
them such weight as the judge considers necessary
in reaching the overall conclusion in the totality
of the circumstances that is required of the Court
in answering the central question: has the
aggrieved parent conducted himself in a way that
is inconsistent with his later seeking a summary
return?
Well, in this case, can it be said that the father has
conducted himself in a way which is inconsistent with him
seeking a summary return? The case raises an as yet undecided
issue. There was no capacity for the father to seek a summary
return under the Hague Convention whilst the child was in
Malaysia. Was his failure to seek a summary return according
to the common law of Malaysia to be said to be acquiescence in
the wrongful removal of the child to Malaysia? Has he acted in
a manner inconsistent with his right to seek a summary return
of the child under the Convention?
He says, “I was told by the District Attorney in Arkansas that
there was nothing I could do.” He says that he had been
advised by his wife that her father was a powerful man in the
country. He says that, “I never gave up wanting my child at
home, and as soon as I found an opportunity to move under the
Convention, I seized myself of that opportunity.”
I will turn to my determination of this issue shortly, but I
thought it appropriate to make reference to some other cases in
respect of the acquiescence issue insofar as they may be of
assistance.
There is a strict and narrow test set out by the United States
Court of Appeals for the Sixth Circuit in Friedrich (1996) Fed
Appeals 0085P [Friedrich v Friedrich (6th Cir. 1996) 78 F.3d
1060], where the Court said:
Acquiescence under the Convention requires either
an act or statement with the requisite formalities
such as testimony in a judicial proceeding, a
convincing written renunciation of rights or a
consistent attitude of acquiescence over a
significant period of time.
More recently the Court of Appeal in H v H [1996] 2 FLR 570
appears to have removed itself back closer to the position
adopted in Re A supra, of which I have already stated I am
critical. I have some degree of difficulty in accepting the
decision in H v H supra as being consistent with the
development of the English decisions after Re A supra, although
Waite LJ is the author of many of them.
In H v H supra, some Israeli children of Orthodox Jewish faith
were wrongfully removed from Israel to England. The father
first sought to have the matter dealt with by his local
religious tribunal who summonsed the mother. She ignored their
summonses. It was only when it became apparent that the local
religious tribunal was not going to be a useful exercise for
the father that he commenced proceedings under the Convention.
The judge at first instance ordered the summary return of the
children.
The Court of Appeal held that the behaviour of the father
taking active steps towards the settlement or adjudication of
the matrimonial differences through the medium of the Beth Din
without the making of any overt statement that he was insisting
upon summary return of the children supported an inference of
acquiescence. I must say, as I have indicated, I have some
degree of difficulty with the conclusions of the Court of
Appeal in that case.
Be that as it may, it seems to me that this father was between
a rock and a hard place with respect to the mother’s behaviour.
The mother had taken refuge in a country which had not executed
any agreement with the United States of America. The mother is
a native of that country; the father was an alien in the
country. The father is a man with apparently no or extremely
limited financial means; the wife is highly educated and has,
what I would describe, in general terms, as significant
advantages of local knowledge in the situation. Can it be said
in those circumstances that the father had acquiesced in the
mother’s wrongful removal of the child from the United States
of America? In my view, the answer to that question is no.
Accordingly, in my view, the issue as to whether or not a
discretionary order needs to be made in this case does not
arise. However, if I am wrong on that issue I need to voice my
views as to the exercise of discretion.
Discretion
It is suggested in H v H supra by the Court of Appeal that when
one comes to exercise a discretion in respect of Convention
cases, one ought to consider the likely outcome of the
substantive proceedings. This is the spectre which raises the
type of element to which I have already referred of creating a
distinction between an abducting custodial parent and an
abducting non-custodial parent.
It may well be, as I indicated to the parties in discussion,
that upon the mother’s return to the jurisdiction in the United
States of America, the United States courts will say that she
should not have behaved in the way she has behaved but that the
welfare of the child demands in the circumstances that the
mother and child be free to leave the United States providing
adequate arrangements can be made to secure future contact
between the father and the child.
In H v H supra, when indicating that the trial judge’s
discretion had not been properly exercised, Waite LJ said at
577:
He also failed to consider the likely outcome of
the substantive proceedings. That was
unfortunate, because in a case where the children
are so young and their mother claims that she
cannot endure living in Israel, there must be at
least a possibility that the Court (in either
jurisdiction) would regard it as adverse to the
best interests of the children to compel her to
live in a country where she is deeply unhappy, and
would conclude that for the time being they ought
to have their primary home in her care in England.
His Lordship then went on to exercise the discretion and said
that the factors in that case pointed overwhelmingly in favour
of allowing the substantive proceedings to continue in the
United Kingdom where the father would be accorded a hearing no
less sympathetic to his claims to serve the welfare of the
children.
Now, I do not have that luxury in this case. This is not a
case in which substantive proceedings as to the welfare of this
child can be heard in Australia in the foreseeable future. The
mother is here on a most transitory basis. She is expressing a
view that she wishes to return but that matter is clouded in
uncertainty, and my choice appears to be either that the child
returns to the United States of America, which Court was
properly seized with the jurisdictional issue, where a hearing
can be heard on the merits as to the welfare of the child or
that the child returns to Malaysia where it is unlikely that
the hearing on the merits can realistically take place, given
the father’s total lack of funds and given the absence before
me of any evidence that the Malaysian legal system will provide
the father with a fair and reasonable hearing in which all of
the issues relating to the welfare of the child can be properly
explored.
Normally I would proceed on an assumption that foreign law in
this particular area, unless otherwise proven, is likely to
coincide with Australian law.(see Toric (1981) FLC 91-046).
There are, for reasons well known to students of recent
Australian and Malaysian jurisprudential history, some reason
to doubt whether that assumption is safe to make in respect to
the Family Law aspects of Malaysia. Many Malaysians would
appear to have a similar view about Australian Family Law.
In the circumstances I face a different dilemma to that faced
in H v H supra, where an English mother had taken Israeli
children to England and indicated she was not returning to
Israel, and the English courts felt confident that they could
then deal with the issue and give the father a fair hearing on
the question of the welfare of the child. I do not, as I have
indicated, have the luxury of being able to say with absolute
confidence that the Malaysian legal system will give this man
just as fair a hearing as he would get in the United States of
America, before the relevant court in Arkansas. I have no
information about that and the mother’s legal advisers have not
sought to put any before me.
There is another irony in this case in that the father now
lives in Florida and there are some jurisprudential issues to
be raised under the United States of America Uniform Child
Custody Jurisdiction Act (“the UCCJA”) as to which court within
America has the appropriate jurisdiction. My prima facie would
seem to indicate that probably Arkansas has adequate
jurisdiction, I refer particularly to chapter 9.13.203 of the
Arkansas Civil Code which enacts the UCCJA, there being no
other state which would have jurisdiction under perquisites
substantially in accordance with sub-divisions 1 and 2 and 3 of
that section, namely, home state of child at the time of
commencement of proceeding, or home state of child within six
months before commencement of proceeding. In any event the
child would have significant connection with the state in any
event because of the previous residence of both parents within
Arkansas and the making of the orders within Arkansas.
CONCLUSION
It follows from what I have said that it is my melancholy task
to require the return of this child to the United States. In
summary I do so for the following reasons:
(1) the child was clearly wrongfully removed from the United
States;
(2) there is no other court that I can see that is likely to
provide both parties with a fair and reasonable opportunity to
vent their dispute;
(3) the aim of the Convention is to prevent the evil that
occurred in the consultation of the other parent who has and is
exercising some custodial rights over the child.
The Preamble to the Convention recites the firm conviction of
the State parties “that the interests of children are of
paramount importance in matters relating to their custody” and
their desire (i) “; to protect children internationally from
the harmful effects of their wrongful removal or retention” and
(ii) “; to establish procedures to ensure their prompt return
to the State of their habitual residence, as well as to secure
protection for rights of access”.
The objects of the Convention, as stated in Art 1, are:
“(a) to secure the prompt return of children wrongfully removed
to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in the
other Contracting States.”
(4) The only element that operates in favour of the wife, in
my view, is the passage of time and that is tempered by the
lack of her presence inside a Convention country and the lack
of any evidence that would suggest that she is unable to
adequately conduct the proceedings herself in Arkansas.
It seems to me, in the circumstances, that Sasha should return
with the mother to Arkansas. This raises a number of
logistical difficulties. I am told the parties can resolve
those difficulties and I propose to stand the matter down to
enable them to prepare some minutes
RECORDED: NOT TRANSCRIBED
Subject to any further application being made to me I propose
that the child return to the United States within 10 days of
this date. The parties can have counselling in the meantime,
and maybe alleviate the necessity for the return in any event.
I do not in the circumstances propose to make any order for
costs.
CHILD ABDUCTION – HAGUE CONVENTION – WRONGFUL REMOVAL – CHILD
TAKEN FROM USA TO MALAYSIA – WHETHER TIME CALCULATED FROM
LEAVING USA OR ARRIVING IN AUSTRALIA – WHETHER CHILD SETTLED IN
NEW ENVIRONMENT – WHETHER FATHER’S INACTION WHILST CHILD IN
MALAYSIA AMOUNTS TO ACQUIESCENCE – WHETHER TO ORDER RETURN IF
DISCRETION TO BE EXERCISED