AUSTRALIA – 1988 (1988) (Return denied based on age of maturity) The Mother consented to the child leaving England to visit the father. She also consented to the child residing permanently with the father in Australia. Judge ruled the child had reached an age of maturity and denied the return to England based on the child’s wishes.
In re the Marriage of Turner(Fam.Ct. of Australia at Brisbane 1988)
No. 1314/88
Before the Hon. Justice Lambert on 27 Jun 1988.
Appearances:
Mr. F. Clair of Counsel instructed by the Queensland Crown
Solicitor, appeared for the Director-General, Department of
Family Services, Queensland. Mr. R. Whiteford of Counsel
instructed by J. B. Stevenson & Co., appeared for Malcolm John
Turner. Miss D. Clarke, Solicitor of the Legal Aid Office
(Queensland) appeared as the Separate Representative for the
child Adele Turner.
REASONS FOR JUDGMENT
On 3 May 1988, there came before me for hearing two applications
relating to the child, Adele Turner, the sole child of the
marriage between Malcolm John Turner and Elizabeth Gladys Diane
Turner.
Adele was born on 24 January 1975 in England where her parents
then resided. Both proceedings arise out of the circumstances in
which Adele, with the consent of her mother,in whose favour an
order for her custody was made in England on 25 October 1977,
came from her mother’s home in England 1n December 1987 to reside
with her father and his present wife and their two children in
Australia.
Those circumstances are get out in my written reasons for the
orders made at the preliminary hearing of the applications on 3
May 1988, and I incorporate those reasons in this judgment. The
hearings resumed on 24 June 1988 when additional evidence was
placed before me comprising the report furnished by Yvonne
Darlington, a qualified social worker with a work-experience
background of some 10 years, a statement of financial
circumstances filed by the husband, two affidavits sworn by the
wife in England, and two letters from her English solicitors –
Gray, Purdue and Co – one directed to the Queensland Crown
Solicitor, and the other to the Queensland Legal Aid office.
Oral evidence was taken from the husband and the social worker
who were each cross examined. The child was separately
represented in the proceedings pursuant to my earlier order.
The director’s application under The Hague Convention.
I have come to the conclusion that the orders sought by the
director for the return of the child to her mother in England
with associated expenses and costs be refused under the
discretion conferred by subregulation 16(3)(C) of the Family Law
(Child Abduction Convention) Regulations made pursuant to section
IIIB of the Family Law Act of 1975.
The relevant provisions of the regulations state:
“16 (1). Subject to sub-regulation (3) a court shall order
the return of a child pursuant to an application made
under sub-regulation 15 (1) if the day on which that
application was filed is a date less than one year after
the date of the removal of the child to Australia”
and –
“16(3). A court refuse to make an order under
sub-regulation (1) or (2) if it is satisfied that-
(c) the child objects to being returned and has
attained an age and decree of maturity at which it is
appropriate to take account of the child’s views.”
There is no dispute upon the facts set out in the affidavits of
the husband and the wife read in the proceedings that the wife
consented to the child’s leaving England to visit the husband for
a fixed holiday period in Australia in December 1987, and
subsequently consented to her residing permanently with the
husband in Australia at the conclusion of that specified period
and before the expiration of that period withdrew her consent to
the child’s residing in Australia permanently with the husband.
At the time that the wife consented to the child’s holiday visit
to the husband being enlarged to embrace her permanently residing
with him, she was, it is clear, acquiescing in the child’s wish
pressed to her so to do. The evidence establishes that Adele had
raised with the wife the issue of her taking up permanent
residence with the husband in Australia prior to her departure
from England should she desire to do so.
The husband, quoting Adele, alleges that the wife’s response was
favourable to the wishes of the child. The wife’s recollection is
that her response was more vague and uncommittal, “We would see.”
On either view, it could not be said that the wife was taken
completely by surprise when the child and the husband 9ought her
consent by telephone on 12 December 1987 to the child’s
permanently residing in Australia with him.
She does contend, however, that her consent to that request wag
given without a proper consideration of all its implications for
the welfare of the child. The wife’s initial consent to the
child’s retention in Australia, although later withdrawn, takes
this case out of the classical child abduction category. It may
well be that her conduct constitutes an acquiescence in the
child’s “removal” from England so as to raise the discretion
under regulation 16(3)(A) of the regulations based on the ground
that the retention of the child in Australia is not “wrongful”
within the meaning of that term in article 3 of The Hague
Convention.
However, as I have come to a firm conclusion that I should
exercise the discretion under regulation 16(3)(C) it is not
necessary for me to decide that question. The reports of Mr
Smiley and Yvonne Darlington both reveal that Adele holds a
genuine desire to reside permanently with her father in
Australia, and she is able to articulate a variety of sound
reasons that influence her to that desire.
Since Yvonne Darlington had the opportunity of interviewing the
wife in the course of a lengthy telephone session and of
monitoring the interaction of Adele with her mother and her
step-sister Sophia in lengthy telephone sessions, I prefer to
base my judgment upon her evidence.
She described Adele as an attractive outgoing 13-year old who
likes her school and enjoys interaction with her peers and a
number of outdoor activities. She spoke happily of most aspects
of life with her mother and step-sister in England and appears to
have enjoyed a good relationship with them both.
There appear to have been some areas in which her interaction
with her mother was not comfortable, but these areas seem to
relate mainly to the constraints of the religious sect to which
her mother adheres upon a 13-year old developing a desire for
greater personal independence of thought and action.
Her reasons advanced for wanting to stay in Australia are: (1)
her perception of better opportunities for her future, mainly in
the employment field; (2) less constraint upon her development
of her independence; (3) some frustration at her mother for
changing her mind; (4) her involvement in a two-parent family.
The first of these reasons could not, in my view, be relied upon
as proof of maturity in Adele’s perceptions since it related to a
problem that lies some years ahead, and she has had limited
opportunity to make proper comparisons. The other reasons,
however, seem to me to involve mature insight for a 13-year-old
girl, and they do combine to support her current sense of
determination to remain with her father that Yvonne Darlington
reports upon.
In fact, her major concern for Adele is that the relationship
between herself and her mother may have been damaged by the
unplanned nature of Adele’s elongated stay with her father, as
she, her mother, and Sophia did not have the opportunity to
prepare emotionally for that type of separation.
Adele has consistently expressed a wish to remain with her father
in Australia. She has settled happily in his households at her
new school, and in her local community. Her discussion with her
mother on the topic of her change to her father’s household and
the circumstance that brought it about arranged by Yvonne
Darlington has enhanced her sense of confidence about her wish to
remain in Australia with her father.
Her father has suffered a substantial financial reverse through a
motor vehicle accident which it seems to me would tend to put a
damper on the excitement value to the child of the change in her
lifestyle, independently of the routine developed over the
passage of time. Ms Clarke, representing the child, submitted in
accordance with her instructions that the director’s application
be refused.
I find, then, that Adele objects to being returned and has
attained an age and degree of maturity at which it is appropriate
to take account of her views. Her return to her mother in
England under the regulations would, on my view of the evidence,
more likely than not intensify Adele’9 hurt at her mother’s
change of mind and place her emotional relationship with her
mother in jeopardy.
Accordingly, I propose to dismiss the director’s application.
The husband’s custody application:
Notwithstanding a strong submission on behalf of the husband that
I proceed without delay to make a custody order in favour of him,
I am satisfied that the child’s welfare would be best protected
by deferring her determination on his application until the wife
has been given a more reasonable opportunity to be represented in
the proceedings.
It is clear from the letters I have referred to from her English
solicitors that she wishes-to be legally represented so that her
case may be properly presented through evidence and submissions
at the hearing of those proceedings. She was adequately
represented by the director on the convention application.
She has applied in Australia for legal aid to present her case,
but her application was refused. She has sought a review of that
determination. The English solicitors received Yvonne
Darlington’s comprehensive report only on 23 June 1988. They seek
an adjournment of the custody proceedings in the event that the
wife’s application under the convention was refused.
There are a number of strong reasons, in my view, for adjourning
the custody proceedings, at least until after the wife’s
application for review of the Legal Aid Commission’s refusal of
her application for legal aid has been determined. The husband’s
application is, in effect, one for reversal of the English
custody order of which this court has knowledge. Adele is
presently within the jurisdiction of this court. She is also, it
seems to me, within the jurisdiction of the English courts as her
ordinary residence is determined by the parent having custody –
the wife, and cannot be changed by the unilateral retention of
her by the husband – Glasson v Scott (1973) 1 Australian Law
Reports 370.
This court then must consider whether it is the most appropriate
forum, the forum of convenience, to try the matter. That involves
a consideration of the convenience of the parties and their
witnesses and the systems of law involved, but the paramount
consideration remains the welfare of the child. That Adele is a
foreign national is but one factor to be considered. Both the
English and the Australian courts have assumed jurisdiction to
hear and determined the custody of children “kidnapped” into
their jurisdiction on the basis of the paramount consideration
being the welfare of the child – Norman and Norman, Number 1,
(1968), 12 Federal Law Reports 29; In the marriage of Schenck
(1981), 7 Family Law Reports 170; In re L (Minors) (1974), 1 All
England Reports 913.
The wife as custodial parent should have a reasonable opportunity
of making submissions upon the forum of convenience. It would
seem from her solicitors letter that legal aid may be more likely
available to her (and to the husband) in the English than in the
Australian courts. Another important factor that persuades me to
adjourn the husband’s application until it is practicable for the
wife to be represented is the interest of Adele and the parties
in having a determination that is final to the extent that any
custody determination can be final.
If a custody order were made in the husband’s favour, and the
child delivered to the wife in England for access within a
relatively short period of time, as Yvonne Darlington sees as
important to Adele’s welfare, then the English courts if called
upon to review the English order, would hardly be persuaded to
haye much regard to an order made in this court in effect
reversing that English order in circumstances in which the wife
had very limited opportunity to present her case.
If the wife does not obtain legal aid to participate properly in
the proceedings in Australia, it may well be in the best
interests of both of her parents and best promote Adele’s welfare
in the long term if the English order were reviewed in the
English courts. For those reasons, I propose to adjourn the
husband’s application for custody for a period necessary to
enable the wife’s application for legal aid to be finally
determined. The access order in favour of the husband should-be
continued to protect Adele’s visitor status in Australia in the
interim.
ORDERS
Accordingly, I make the following formal orders:
(1) that the application by the Director-General,
Department of Family Services for the State of Queensland,
filed herein on 18 May 1988 for orders under the Family
Law (Child Abduction Convention) regulations relating to
the child Adele Turner be dismissed;
(2) that the husband’s application for an order for
custody of the said child Adele Turner be adjourned to
10.30 am on Monday, 19 September 1988, before myself for
hearing;
(3) that the husband do have access to with possession of
the said child Adele Turner in Australia until further
order of this court;
(4) that a sealed copy of this order and the judge’s
reasons therefore be forwarded by the husband’s solicitors
by prepaid post forthwith to the wife care of Gray,
Purdue, and Co, solicitors, 47B Osborne Road, Southsea,
Portsmouth, P05.3LS, United Kingdom;
(5) that each party’s costs of the adjournment be
reserved.
Perhaps I should order that the orders herein be drawn up and
issued urgently.
/s/ Lambert
Hon. Justice Lambert