AUSTRALIA – BARRACLOUGH – 1987

In the Marriage of W M and G R BARRACLOUGH(FAMILY COURT OF AUSTRALlA 1987)
Pages 773 through 780

Kay, Justice

18, 19 August 1987 – Melbourne

Children – Application by wife for guardianship and custody –
Application by husband in the United Kingdom seeking similar
orders – Where matters in issue should be determined.

Custody – Children brought to Australia by wife – Proceedings in
United Kingdom for return of the children – Family Law (Child
Abduction Convention) Regulations (Cth) rr 2, 14, 15, 16.

In an application filed in the Family Court of Australia
(the Family Court) in May 1987 the wife sought sole guardianship
and custody of four children all born and raised in England. The
wife had persuaded the husband to allow her to bring the children
to Australia for their summer holidays without informing him that
she had then decided to make Australia their permanent home.

In February 1987 she advised the husband of her intention
to seek custody of the children and to remain in Australia. The
husband then commenced proceedings in the High Court of Justice,
Family Division, in England (the English court), and on 24 April
1987, by operation of s41 of the Supreme Court Act 1981 (UK), each
of the children became a ward of that court. The husband sought
orders that the children be returned to the jurisdiction of the
English court and that he be granted the care and control of them.

The wife’s proceedings in the Family Court were adjourned
to enable the English court to determine whether the substantive
issues should be heard in England or Australia.

The English court decided that the matter was to be
determined in England in December 1987 but declined to order the
children’s immediate return, noting the wife’s assurance that
“they will be brought to this country in December if a hearing can
be arranged at that date”.

The English court refused to provide to the husband an
opinion, or decision or declaration under s8 of the Child
Abduction Custody Act 1985 (UK) to the effect that the removal of
the children or their retention outside the United Kingdom was
“wrongful” within the meaning of Art 3 of the Convention on the
Civil Aspects of International Child Abduction (The Convention).

On 11 August 1987 the husband applied in the Family Court
pursuant to the Family Law (Child Abduction Convention)
Regulations (Cth) (the regulations) for an order that the wife
return each of the children to the husband. He alleged that the
children were wrongfully removed from the United Kingdom by reason
of the wife’s advice in February 1987 that she was not returning
with them.

Held, in dismissing both the husband’s application of
August 1987 and the wife’s application of May l987:

(i) The regulations and the Convention represented an
important part of our law. The Convention cut across the usual
rule that the welfare of the child was paramount and provided a
method to secure the prompt return of children to their place of
habitual residence. Regulation 16 provided that, subject to
specified exceptions, the court should order the return of a child
if the application was filed within a year after the removal of
the child to Australia.

(ii) Where wrongful retention was alleged, it needed to be
established for the purpose of Art 3 of the Convention firstly,
that at the time when the application was before the court, the
retention must then be in breach of rights of custody attributed
to a person under the law of the place where the child was
habitually resident immediately before the retention. The words
“it is in” in Art 3(a) were words of continuity and present tense
and were not properly capable of referring only to the time that
the retention of the child initially took place.

Secondly, the court also needed to be satisfied that at the
time of the initial retention the rights of custody were actually
being exercised or would have been exercised were it not for the
retention.

(iii) Assuming that both Australia and the United Kingdom
were at all relevant times signatories to the Convention and
convention countries, then whatever were the present rights of
custody of the husband they did not, in the light of the
determination of the English court and the fact that the children
were wards of that court, include a right to have the children
back with him in England now.

Re W (an infant) (1964) Ch 202 at 210 applied

Application

These proceedings concerned an application by a wife for
sole guardianship and custody of four children of her marriage to
the husband who had also applied pursuant to the Family Law (Child
Abduction Convention) Regulations (Cth) for the return of each of
the children to the United Kingdom.

APPEARANCES

Mr St John for the husband. Mrs Hoeper for the wife.

Cur. adv. vult.

Kay, Justice

Before me today is the adjourned return of an application
by the wife filed 18 May 1987 in which she seeks sole guardianship
and sole interim and permanent custody of four children of the
marriage, W, born 12 November 1974, X, born 23 January 1976, Y,
born 7 December 1978 and Z, born 5 January 1981. She also seeks an
order for the payment of private school fees and educational
expenses for the children. The matter first came on before me for
hearing on 18 June 1987. At that time the husband made an oral
application that I should decline jurisdiction in respect of these
children other than to make an order that the children be returned
to the United Kingdom within three calendar months. That would be
be 18 September 1987.

The background to the proceedings at that point is set out
in my judgment of 18 June 1987, and I shall summarise a number of
matters that are relevant to it. The parties married at St Johns
church, Toorak, in the state of Victoria on 15 December 1973. The
husband is an Englishman and the wife is Australian. Shortly
after their marriage they made their home in England. The children
were born in England and raised in England. Save for some short
holidays in Australia, until July of 1986 the children lived their
entire lives in England.

The wife deposed to the marriage being unhappy for several
years. She alleged the husband had a severe alcoholic problem. She
deposed that in October 1985, he was diagnosed as suffering from
multiple sclerosis and after that time had been emotionally
unstable. She alleged that at Christmas 1985, he pulled out a gun
and terrified her and the children with it. In January 1986, when
the husband was asleep, she attacked him with a hammer. She
described her self as suffering from the constant trauma and
pressure that she and the children had been exposed to by the
husband. She said the next six months were intolerable, and she
persuaded the husband to allow her and the children to travel to
Australia for the children’s summer vacation. Unbeknownst to the
husband, she had decided then to make Australia the permanent home
of herself and the children.

She left England on 10 July 1986 accompanied by the
children. They had return tickets booked on 9 September 1986. She
came straight to Australia. in September 1986 there were some
telephone conversations which culminated in the wife advising the
husband that she and the children would return to the United
Kingdom by July 1987. She did not intend to honour that commitment
at the time she made it. She has bought herself a home in
Melbourne and the children are enrolled in private schools here.

in February 1987, she wrote to the husband, through her
solicitors, indicating that she wanted to have custody of the
children and that she intended to live permanently in Australia.
On 31 March 1987, the husband prepared a document to be filed in
the Divorce Registry of the High Court of Justice, Family
Division, of the United Kingdom and on 15 April 1987, the petition
accompanying that document was prepared. It is not abundantly
clear what date it was filed from the material before me. In that
petition the husband sought custody of the children of the
marriage. In the proposals for the welfare of the children
accompanying the petition, he proposed that the children should
return to England and continue their education in England.

On 24 April 1987 the husband filed in the High Court of
Justice, Family Division, Principle Registry in England an
application seeking that the children be made wards of the court,
seeking an order that the children be returned to the jurisdiction
of the High Court of Justice and seeking an order that the care
and control of the children be committed to the plaintiff. By
operation of the provisions of s41 of the Supreme Court Act 1981
(UK), each of the children became a ward of court on that day.
Those proceedings were made returnable on 3 July 1987.

When the matter came on before me I determined the
appropriate forum for deciding the jurisdiction question, that is
whether the contest between the husband and wife should be in
Australia or in the United Kingdom, and I simply adjourned the
applications before me from l8 June l987 until l8 August l987, to
enable the High Court of Justice to make a determination about the
matter. It appears from the reasons for judgment delivered on 11
August 1987 by Waite J in the High Court of Justice, Family
Division, that on the return of the proceedings in England on 3
July 1987, the Registrar made orders directing an issue to be
tried as to whether the substantive application for custody and
control of the children should be heard in England or Australia.
and gave consequential directions for the filing of evidence and
so on under a programme which, and I quote “carried the matter
well into the vacation and on into the Michaelmas term”.

On 9 July 1987 the husband appealed against that order and
the matter came on for hearing and argument before Waite J. The
wife, having indicated through her counsel that she proposed to
return to England for the proceedings later in the year. His
Honour posed three questions:

(1) What direction should now be given for the hearing of
the merits in England?

(2) Should an order be made by the English court for the
return of the children to England, for the purposes of such a
hearing or in any event?

(3) Should a declaration be made in the English court under
s8 of the Child Abduction and Custody Act 1985 (UK)?

In the course of his reasons for judgment, his Honour seems
to have marginally misunderstood the effect of my earlier order in
that he (having in the opening to his judgment decided that
Melbourne was in New South Wales) said as follows:

“First, the hearing as to care and control, and the future
residence and schooling of the children. This is of course the
whole heart of the case. It is a matter which the Melbourne court
has ruled should be decided in England; and it is a matter of
vital importance to the parties.”

What I had, in fact, decided was that the English court
should rule on whether the matter should be determined either in
England or in Australia, His Honour concluded that the hearing
should not take place in September, as was urged upon him by
counsel for the husband, but that it ought to be heard at a later
time and, in particular, the second week in December 1987. Counsel
for the wife said that:

“in the event of a hearing in London being arranged al that
time, the mother would be willing not only to come herself (as she
would be for a hearing at any time) but also voluntarily to bring
the children with her, so that they would be available in this
country at the time of the hearing and so that they could in any
event enjoy some of the Christmas period in the company of the
father.”

His Honour determined that there ought to be a hearing in
December 1987.

He then turned to what he considered the second question,
namely should the children be returned to England in any event. He
carefully considered the competing proposals and concluded that
the welfare of the children dictated that it was inappropriate to
unsettle the children at this time and that the proper time for
the children to be back in England was December. He said and I
quote:

“I accordingly refuse the order for the children’s return.
1 do however, take note of the assurance given by the mother that
they will in any case be brought to this country in December if a
hearing can be arranged at that date. That would seem to me to be
in everybody’s interest.”

As to the third matter where the husband sought a
declaration under s8 of the Child Abduction and Custody Act 1985
(UK), that section provides:

“The High Court or Court of Session may, on an application
made for the purposes of Art 15 of the Convention by any person
appearing to the court to have an interest in the matter, make a
declaration or declarator that the removal of any child from, or
his retention outside the United Kingdom was wrongful within the
meaning of Art 3 of the Convention.”

The Convention on the Civil Aspects of international Child
Abduction provides:

“Art 3: The removal or the 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.

The rights of custody mentioned in sub-paragraph (a) above,
may arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an agreement
having legal effect under the law of that State.”

“Art 15: The judicial or administrative authorities of a
Contracting State may, prior to the making of an order for the
return of the child, request that the applicant obtain from the
authorities of the State of the habitual residence of the child a
decision or other determination that the removal or retention was
wrongful within the meaning of Article 3 of the Convention, where
such a decision or determination may be obtained in that State.
The Central Authorities of the Contracting States shall so far as
practicable assist applicants to obtain such a decision or
determination.”

His Honour derided that until this court requested the
applicant to ask the English court to decide that question, it was
inappropriate for the applicant himself to ask the court the
question. Accordingly he refused to provide an opinion or decision
or a declaration under s8 of the Child Abduction and Custody Act
1985 (UK)

What had happened to bring about the introduction of the
Convention into the proceedings is that the husband informed the
court in England that he was about to, or had in fact made an
application to the Family Court of Australia pursuant to the
provisions of the Family Law (Child Abduction Convention)
Regulations. in order to bolster that application, he presumably
wanted a declaration from the English court. The wife’s counsel
made what would seem to be an ingenious attack in the English
proceedings and said the husband should not be allowed to ask the
English judge for the return of the children because he was about
to ask the Australian judge under the Convention. His Honour said:

“The mother’s procedural objection does not trouble me very
much. Considerations of that kind always yield to the demands of
child welfare and, if I thought it in their interests to do so, I
would have to run the risk of making an order in England which
might seem discourteously to pre-empt the pending application in
Melbourne. I must look at the matter as one of child welfare.”

His final orders were as follows:

“The originating summons be brought on for hearing during
the week beginning Monday 14 December 1987, estimated length three
days.

I will order a court welfare officer’s report to deal with
the respective arrangements proposed by each parent in England or
Australia.

“The affidavits filed in the Melbourne Family Court are to
be treated as filed in the English wardship proceedings. The
plaintiff father to file his further evidence within 7 days and
the defendant mother within 28 days; and the plaintiff father to
reply within 4 days thereafter if so advised.

(The mother has stated by her counsel that it is her
present intention to bring the minors voluntarily to England at
the time of the said hearing.)

“I confirm the wardship until further order. I will order
that none of the minors be psychiatrically of psychologically
examined without the leave of the court.

“I allow the appeal from the order of 3 July 1987.”

it is not abundantly clear to me that he was allowing in
allowing the appeal other than, perhaps, to the extent that he was
now fixing the trial on its merits on 14 December 1987 rather than
going along with the Registrar’s order dealing only, at that
stage, with the venue argument.

The husband, on 11 August 1987, filed in this court in
accordance with Form 2 to the Sch 3 of the Family Law (Child
Abduction Convention) Regulations, an application in which he
mistakenly claimed he represented the responsible authority
under the regulations. I will ignore that aspect. He applied for
an order that the wife forthwith return or cause to be returned to
the husband each of the children. He alleged that he had a right
of custody in the children by operation of s1 of the
guardianship Act 1973 (UK).

He alleged that on 13 February 1987, the children were
wrongfully removed from the United Kingdom by reason of the wife
then advising him, from Australia, that she was not returning with
them. For the purposes of these proceedings I am content to
proceed on the basis that both Australia and the United Kingdom
are and were, at all relevant time, signatories to the Hague
Convention on Civil Aspects of Child Abduction and that they were
both, at all relevant times, convention countries. I am a little
puzzled by the matter because the convention countries are
defined, in reg 10 of the regulations, to mean a specified country
specified in Sch 2 and any other country in respect of which the
convention has entered into in force in Australla.

At my request, enquiries were made about that matter. Mr
St John for the husband informed me, from the bar table, that the
United Kingdom had, effectively, entered to the Convention by
operation of Art 43 of the Convention, as and from 1 September
l987 whilst Australia had entered into the Convention as and
from 1 January 1987.

Mrs Hoeper referred me to an unreported decision of Nygh J
of Hicks v Hicks in which his Honour determined that Australia
had entered into the Convention prior to the United Kingdom. My
own limited enquires have not yet made it abundantly clear which
of those stances is correct and it is of some relevance because it
appears, from the provisions of the Convention, that it is not to
have retrospective effect. I refer to Art 35 which provides:

“This Convention shall apply as between Contracting States
only to wrongful removals or retentions occurring after its entry
into force in those States.”

As I have indicated I am prepared for the purposes of this
Judgment to presume that Art 35 does not place a bar to my
determining the issue.

The Family Law (Child Abduction Convention) Regulations and
the Convention on Civil Aspects of International Child Abduction,
represent a very important part of our law. Nations have grappled
for many, many years with problems involved in the wrongful
removal of children out of their natural homeland and normal place
of residence. Modern technology and modern transport make
redundant the words of the song in Carmen Jones “It only takes a
half a day to be one thousand miles away.” It now only takes a
half a day to be 6000 miles away.

To deal with the problem a number of nations, including
Australia, have entered into a Convention which cuts across the
usual rule that the welfare of the child is paramount and provides
a method to secure the prompt return of children back to their
place of habitual residence. There are very limited bases upon
which a court can refuse to return the children, providing they
come within the ambit of the Convention. Those limited bases are
reflected in reg 16 of our regulations. Nowhere do they talk
about the broader aspect of the welfare of the child. They are
much more stringent than the provisions in s68 of the Family Law
Act dealing with countries that have entered into bilateral
arrangements with Australia for the return of children and
enforcement of their own custody orders, in particular, New
Zealand and Papua New Guinea.

The regulations provide a system whereby the states shall
be responsible through their central authorities, for the
enforcement of the Convention. Almost all of the regulations and
the provisions of the Convention itself are worded in a manner
which presumes that proceedings are to be brought by a central
authority established to enforce the Convention. Awkwardly, reg
14 provides that nothing in the regulations prevents a person from
applying directly to a court of competent jurisdiction, whether or
not under the Convention in respect of the breach of rights of
custody of a child removed to Australia.

When an application comes before the court reg 16 provides
that, subject to the exceptions in sub-reg 3, the court shall
order the return of a child if the application is filed within one
year after the date of removal of the child to Australia.
Regulation 3 defines removal as including the wrongful removal, or
retention, of a child within the meaning of the Convention.

If a child has, within the meaning of Art 3, been
wrongfully removed to Australia or wrongfully retained in
Australia and an application is filed within one year of the date
of the removal or retention, an Australian court must order the
return of the child, unless one of the exceptions under reg 16 (3)
(a), (b), (c) or (d) is made out.

Where wrongful retention is alleged, Art 3 has two criteria
that need to be established. Firstly, under Art 3(a) at the time
the application is before the court, the retention must then be in
breach of rights of custody attributed to a person under the law
of the place where the child was habitually resident immediately
before the retention.

In this case, that means that the retention of the child in
Australia has to be in breach of the father’s right of custody
under the law’s of England. The words “it is in” in 3(a) are words
of continuity and present tense in my view, and are not properly
capable of interpretation of referring only to the time that the
retention of the child actually took place. I refer generally to a
decision of the House of Lords in D (a minor) v Yorkshire County
Counsel (1987) 1 All ER 20 where their Lordships were considering
meaning of the words “is being” in particular to determine whether
they referred only to the present tense or to a continuing
situation.

The second leg of Art 3, of which the court would need to
be satisfied, is that at the time of the initial retention, the
rights of custody were actually being exercised or would have been
exercised were it not for the retention. Perhaps those two need to
be reversed. It is necessary to find that there was a wrongful
retention and currently the retention in Australia of the children
is in breach of the rights of custody attributed to husband.

In my view, whatever are the rights of the custody of the
husband at the present time, in the light of the determination of
Waite J and in the light of the fact that these children are wards
of the court in England, those rights do not include a right to
have the children back with him in England at this time. The right
to determine the current residence of these children rests in the
High Court of Justice as these children are wards of the High
Court of Justice. In Re W (an infant) [1964] Ch 202 at 210
Ormerod said:

“. . . in a wardship case the court retains the custody of
the infant and only makes such orders in relation to that custody
as may amount to a delegation of its duties.”

That reason is sufficient to dismiss the husband’s
application brought on 11 August. I do want to make a few other
passing comments about the convention as it has created
considerable difficulties. To give proper effect to reg 14 (the
regulation allowing a person to directly bring proceedings under
the Family Law (Child Abduction Convention) Regulations rather
than proceedings brought by the central authorities), there ought
to be consequential amendments to the regulations and the terms so
as to give sense to much of what appears in the regulations. For
instance the mandatory nature of the regulations is encapsulated
in reg 16(1), namely:

“Subject to sub-reg(3), a court shall order the return of a
child pursuant to an application made under sup-reg 15(1) if the
day on which that application was filed is less than one year
after the date of the removal of the child to Australia.”

Sub-regulation 15(1) refers only to the responsible central
authority making the application. To give meaning to sub-reg16(1)
in the light of reg 14, I have ignored the pointed reference only
to “an application made under sub-reg 15(1)” and implied into the
sub-regulation the words “or otherwise” immediately thereafter.
There ought to be other consequential amendments made to the
regulations of a similar nature.

There appears to me to be considerable confusion as to what
is meant by Art 16 which provides:

“After receiving notice of a wrongful removal or retention
of a child in the sense of Article 3, the judicial or
administrative authorities of the Contracting State to which the
child has been removed or in which it has been retained shall not
decide on the merits of rights of custody until it has been
determined that the child is not to be returned under this
Convention or unless an application under this Convention is not
lodged within a reasonable time following receipt of the notice.”

I find on a careful view of the Convention that there is no
provision of giving notice in any formal sense.

What I suspect Art 16 means and it may have had some
application to this case if I am correct in my interpretation, is
that where a court is asked to determine rights of custody and it
is brought to the attention of the court that the facts
surrounding the proceedings might bring the matter within the
Convention, the court either has to deal with a convention
application then and there, or alternatively wait a reasonable
time before it can proceed.

On the facts of this case, I had notice in June that this
was a case to which the Convention could apply and it was not
until 11 August that the husband brought his application under the
Convention. I believe it is not necessary for me to determine
whether or not this was a reasonable time having regard to the
fact that the husband went off to fight two battles in the United
Kingdom in the meantime over these proceedings. It has only been
the wife who has urged me to continue to make some decision of
merits of the custody and then on an interim basis because it is
common ground between the parties that the English Court is now
seized of that question.

I have declined, in any event, to make any order in respect
of custody. In the circumstances, I dismiss the husband’s
application of 11 August 1987. I dismiss the wife’s application of
18 May 1987.

I will return the exhibits on the usual undertakings. My
view is that the proceedings before me over the last two days have
been wholly unsuccessful; that is, the proceedings have really
been the husband’s proceedings in respect of the Convention
enforcement, but at the same time the whole of the proceedings in
this court have been brought about by the wife’s retention of the
children and the seeking of orders from a court which was not the
natural or appropriate forum.

In my mind, there ought to be a degree of set-off of the
husband’s costs properly incurred by him, by reason of the wife
having brought the proceedings here in the first place, and then
the husband’s second bite at the cherry. In my view, on the
balance of matters and taking into account the relevant financial
position of the parties, the husband should contribute $500
towards the wife’s costs, and I so order.

Solicitors for the husband: Messers Snyder & Fulford

Solicitors for the wife: Messrs Price Brent & MacPherson

Gary Roberts, Barrister.