Barrios and Sanchez (Australia 1989)[1989] 96 FLR 336
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IN THE MARRIAGE OF:
SAM JOHNNY BARRIOS (CARRASCO) APPELLANT/HUSBAND
AND
MONICA SANCHEZ (HERNANDEZ) RESPONDENT/WIFE
APPEAL No. 115 of 1989 SUIT No. AD 2930 of 1989
Family Court of Australia
IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
Nicholson C.J.(1), Murray(1) and Rowlands (1) JJ.
Hearing: SYDNEY
DATE: 14 Jul 1989
Mr S. W. Tilmouth of counsel instructed by Legal Services
Commission of South Australia, appeared for and on behalf of
the appellant/husband.
The appeal will accordingly be dismissed.
JUDGE1
1. THE COURTThis is an appeal by the husband against an
order by Burton J made on 26 May 1989 whereby his Honour
ordered that the husband return the infant children of the
marriage PAULA CAROLINA BARRIOS born on the 19th day of July
1978 and RODRIGO ANDRES born on the 8th day of September
1980 to the custody of the wife in Chile as soon as
practicable. The operation of that order has been stayed by
Gun J pending the hearing of this appeal. The notice of
appeal contained some 8 grounds but the substance of the
appeal may be described as being that the learned trial
judge erred in either paying insufficient or no regard to
the children’s wishes or in failing to obtain a report from
a welfare officer approved under section 62A of the Family
Law Act 1975 as to the children’s wishes.
2.
Before dealing with the arguments relating to these matters
it is necessary to say something of the history of the
matter.
3.
The parties were married on 12 June 1974 in Chile and the
children were born on 19 July 1978 and 8 September 1980
respectively. It appears that the parties separated in 1982
and thereafter the children remained with the wife until
they came to Australia with their paternal grandmother for a
visit in November 1988 during the Chilean school holidays.
4. The husband swore in an affidavit filed in the
proceedings, that shortly after the separation he and the
wife agreed that she would have the care of the two children
and that he would have access to them each alternate
fortnight and for a longer period once each year and that he
would pay regular maintenance for the children. He deposed
to the fact that this agreement was lodged in the Family
Court at Santiago and he believed that it became an order of
the court. He also swore that since that time he had paid to
the wife maintenance of the equivalent of $US50 per month.
5. He came to Australia in November 1986. He said that
before leaving Chile he gave to the wife the sum of
approximately $US1500 being half the proceeds of the sale of
his business and did not thereafter pay weekly maintenance
until October 1987 when he began paying $US100 per month,
which he increased to $US120, in the three months prior to
the children coming to Australia in 1988.
6. The husband has deposed to the fact that he left Chile
and migrated to Australia as a political refugee arriving
here with his de facto wife and two children of her previous
marriage. Since the parties have been living in Adelaide a
child has been born of that relationship namely, DAVID
SAMUEL on 2 June 1987. He said that prior to coming to
Australia he had regular access to the children in
accordance with the arrangement previously referred to and
that since he had left Chile his mother had had access to
the children in lieu of himself.
7. In 1988 the husband’s mother arranged to come to
Adelaide to visit him. The children accompanied the
husband’s mother on the basis that they would return to
their mother in Chile after the school holidays. The wife
agreed to this arrangement and the children arrived in
Australia with the husband’s mother on temporary tourist
visas on 2 December 1988.
8. It also appears from the material that the wife obtained
an ex parte custody order from the Children’s Court in
Santiago shortly prior to the children coming to Australia,
that order being made on 18 November 1988. The husband had
no notice of that application or order having been made but
it appears probable that it was made as a result of
Australian Embassy requirements relating to the issue of
visas. These visas in fact expired in June 1989 but the
Immigration Department have refrained from taking further
action pending the decision of this court in the matter.
Although there was no direct evidence as to the attitude of
the Immigration Department it appears probable that if this
court was to make custodial orders in favour of the husband,
that the department would permit the children to remain in
Australia.
9. According to the husband’s affidavit the children
indicated to him as soon as they arrived in Australia that
they were not happy living with their mother and wanted to
stay with him. He said that he subsequently asked the wife
if the children could stay for a long time in Australia but
she refused. He says that the children thereafter became
upset and that they became more upset as the time for their
return to Chile grew nearer. He apparently sought advice
from a social worker and obtained some legal advice to the
effect that he did not need to get the wife’s consent to
obtain custody of the children. He then telephoned the wife
again in Chile and explained this to her and he says that
the children spoke to her on the telephone and told her that
they wanted to stay with the husband. The husband claims
that the wife then said that she would agree for the
children to stay as long as they were 100 per cent sure that
they wanted to stay.
10. Significantly enough on 31 January 1989 at the behest
of the husband the children commenced attending Salisbury
North Primary School where there is an “English As A Second
Language” unit. If they were to remain in Australia they
would stay in this unit for a further three to six months
and then go into a normal class for their age group.
11. This matter is of some significance because it
indicates that by the 31st January at least the husband was
already planning to retain the children in Australia.
12. In his affidavit the husband said that he had told the
children that he was seeking legal assistance in relation to
obtaining custody and he claims that they have been much
happier since becoming aware of this and that in a recent
telephone call to the wife, the child Paula told her that
she wanted to stay in Australia and do whatever she had to
do to achieve this. He says that as a result of this comment
the wife agreed that Paula could stay. During the same call
the wife told the child Rodrigo that if he stayed in
Australia he would never see her again and that this made
Rodrigo unsure about what he wanted to do but that according
to the husband he eventually said that he preferred to stay.
13. The husband’s mother has now returned to Chile without
the children. The husband claims that he has not influenced
the children to stay in Australia but asserts that it is in
their best interests to stay in this country. He says that
he does not wish to keep the children here if they are not
happy and that if they do remain in Australia he intends to
make sure that they keep up contact with their mother and
will ensure that they telephone and write to her regularly.
14. The matter came on for hearing before Judicial
Registrar Forbes on 30 March 1989. At that stage
difficulties had been experienced in properly serving the
wife but communications had taken place with her via the
Chilean Consul in Melbourne. The solicitor then appearing
for the wife indicated to the Judicial Registrar that there
was a possibility that the wife would consent to an order in
favour of the husband and the Judicial Registrar adjourned
the matter until 7 April 1989. At that time she informed the
Judicial Registrar that she was instructed by the husband
that he had spoken to the wife confirming the contents of a
telex received by the Consul from his Ministry in Chile
which said that the wife agreed to the children staying in
Australia until the end of the year.
15. The matter was further adjourned until 21 April 1989 to
enable the husband’s legal advisers to obtain a copy of the
telex in question and a translation of it.
16. This telex was heavily relied upon in argument before
us by Mr Tilmouth, for the husband, and in the circumstances
it is I think desirable to set it out in full. The telex is
expressed to be from the Ministry of Foreign Affairs to the
Consul-General of Chile in Melbourne. It is dated 31 March
1989 and it reads as follows:
“Your telex 13. Mrs Sanchez read your telex and said she
is only concerned about the wellbeing of her children and
does not want to aggravate this conflict or bring back the
children against their will.
She also wants the assurances of Mr Barrios that if the
children want to come back they will be allowed to do so and
that she will be able to see them without restrictions.
Therefore she agrees that the children remain until the end
of the year. Nevertheless she makes it clear that the fact
that she does not exercise the actions for their return to
her, does not mean that she is renouncing to her rights, as
recognized by judicial sentence passed by the Children’s
Court and agreed upon by the father of the children, as a
condition required by the Australian Mission in Santiago,
before Mr Barrios trip to Australia.
This means that if her ex-husband starts a judicial
procedure, as you mentioned it in point 4 of your telex, she
would also be obliged to start the judicial procedures in
order to enforce the resolution of the Chilean court
concerning the custody of the minors, decision aggravated by
her feeling that she feels cheated, due to the circumstances
that she consented in good faith to the trip of the children
to Australia for a fixed period of time.
Mrs Sanchez wants her children to be informed that should
any problem arise they should contact her through that
consulate.
Concerning the presumption of a lack of care on her part
with regard to the children, that was due to the critical
economic situation she had to cope with forcing her to work
for her maintenance and that of her children which,
obviously, did not allow her to give them all the proper
attention. During this period she did not receive any
economic assistance from Mr Barrios
17. The last paragraph of the telex relates to certain
allegations made by the husband of lack of care of the
children by the wife whilst they were in Chile which are not
material for present purposes and which were not the subject
of argument.
18. In an affidavit sworn 21 April 1989 the husband said
that he had spoken to the wife by telephone on several
occasions since the hearing on 30 March 1989 and 7 April
1989 and that in those telephone conversations the wife told
him that she agreed to the children staying in Australia to
the end of 1989 and possibly longer if they did not want to
return home. He said that she wanted the children to be
allowed to contact her and also to be permitted by him to
return home should they wish to do so. He said that she told
him that provided the children wished to remain with him she
did not object to him proceeding with his application to
this court.
19. On 21 April 1989 Judicial Registrar Forbes ordered that
the husband cause the children to be returned to Chile
within 7 days of the date of that order.
20. In substance, the learned Judicial Registrar in making
this order, relied upon the fact that the children had come
to Australia for the purposes of a holiday with the wife’s
agreement, the fact that the children are natives of Chile
and are of Chilean heritage having lived with their mother
in Chile since the separation in 1982 and the fact that she
had obtained an order in the Chilean court for their
custody.
21. As to the wishes of the children he noted that Rodrigo
had some uncertainties as to wanting to remain but in any
event he thought that it was inappropriate to attach much
weight to what the children wished to do in the
circumstances. He was not prepared to accept the proposition
that the wife had consented to the children remaining in
Australia and referred to the terms of the telex in this
regard.
22. Application was made for a review of the Judicial
Registrar’s order on 26 April 1989 and on the same day
Burton J ordered a stay of the operation of the order
pending the hearing of the application for a review.
23. The solicitor for the husband conceded on the hearing
of the application for a stay before Burton J that the wife
had not been served with any of the relevant documents. His
Honour indicated at that stage that unless he could be
absolutely certain that the wife fully understood the nature
of the proceedings, and that having fully understood them
she had given her consent, he would take a lot of persuading
that the children should not go back to Chile. It appears
that by this time the Consul-General for Chile had refused
to act any further as an intermediary for the purpose of
communication with the wife and his Honour in granting the
stay also made orders for service of relevant documents on
the wife.
24. As yet there is no evidence that service of these
documents has been effected nor is there evidence that
service of the notice of appeal has been effected and indeed
Mr Tilmouth made application at the commencement of the
hearing before this court for an order dispensing with
service. In view of the orders that the court proposes to
make it is appropriate that service should be dispensed
with.
25. The matter again came on for hearing before Burton J on
23 May 1989 by which time some documents had been received
from the wife via the Chilean Consul-General. The matter was
accordingly further adjourned to 26 May 1989 when a witness
was called to give a translation of the documents so
received. A further written translation of it was sought to
be tendered in evidence on the appeal and was accepted upon
the basis that it did not materially differ from the
evidence before his Honour and put the matter in a more
convenient form.
26. It is unnecessary to set out this document in full but
it may be summarized as follows: First the application of
the husband is opposed on jurisdictional grounds because of
the order of the Chilean court in relation to custody.
Secondly the application is opposed on factual grounds
relating to the circumstances in which the children came to
Australia and the validity of the children’s expressed
intention to reside in Australia is questioned.
27. Paragraph (5) of the document upon which Mr Tilmouth
placed considerable reliance reads as follows:
“As a final consideration I state that I am willing to
allow, without renouncing to the custody of my younger
children given to me by the Court in Chile, that they remain
with their father until the end of the current year,
providing that I receive sufficient guarantees through the
Australian Judicial Authorities and the Chilean Diplomatic
and Consular representatives in Australia that my children
will be able to return to their country at the end of this
period or before if they wish it so.”
28. The final paragraph of the document however is somewhat
inconsistent with this in that it refers to a telephone call
from the husband on 9 May 1989 and indicates a willingness
that the child Paula at her own request be allowed to remain
until the end of the current year:
“. . . the 1st of December 1989 being the latest date of her
return and and that my son Rodrigo, through his request, be
returned immediately to his country.”
29. The principal matter canvassed before Burton J was the
question of the consent of the wife and it is apparent from
this document and from the telex that at no stage did the
wife consent to an order for custody in favour of the
husband.
30. When the matter came on before his Honour on 26 May
1989 the solicitor for the husband conceded that there had
been no consent by the wife but then submitted that the
wishes of the children had not been directly sought. She
submitted that a counsellor’s report should be obtained
directed to this issue and relied upon the decision of this
court in Joannou v Joannou (1985) FLC 91-642. His Honour
however expressed the view both in argument and in the
course of his reasons for judgment that in the particular
circumstances of this case the wishes of the children would
not be of great assistance to him. The relevant passage
from his Honour’s judgment is as follows:
“It was put to me that the wishes of the children should be
considered and an authority for that proposition was cited
to me. I do not believe the wishes of the children in this
case could help me. They are aged 10 and 8; they have been
living with their father now for 6 months. There may have
been some telephone communication between the children and
the wife in that time but I believe that because of the
separation and the vast difference in lifestyle involved and
the fact that the wife has not had the opportunity of any
real influence on the children’s lives in the last six
months, that their wishes could not be such as I could
gain any assistance from them.”
31. Mr Tilmouth in arguing that his Honour was in error
first relied upon the repeal of section 64(1b) of the Family
Law Act 1975 which formerly provided that when a child has
attained the age of 14 years the court should not make an
order contrary to the child’s wishes. By Act No. 72 of 1983
the following provision was substituted.
“The court shall consider any wishes expressed by the child
in relation to the custody or guardianship of, or access to,
the child, or in relation to any other matter relevant to
the proceedings, and shall give those wishes such weight as
the court considers appropriate in the circumstances of the
case.”
32. Mr Tilmouth said that this demonstrated a clear
legislative intention that the court should always consider
the wishes of children of whatever age assuming that they
were capable of expressing them. He referred also in this
regard to Reynolds v Reynolds (1973) 1 ALR 318 at 322 and
Hodge v Hodge (1965) 7 Fam LR 94.
33. Secondly Mr Tilmouth submitted that his Honour ought to
have ordered a conference and report relating to the welfare
of the children pursuant to section 62A of the Family Law
Act 1975 which he submitted was more likely to ascertain
reliably the views of the children and allow the court to
judge more effectively what weight should be given to them.
He further submitted that this was an appropriate case for
separate representation of the children.
34. Finally he submitted that whilst his Honour identified
the best interests of the children as the primary test, his
Honour placed too much reliance on the principles referred
to in Cilento and Cilento (1980) 6 Fam LR 35.
35. In support of his first two submissions Mr Tilmouth
placed particular weight upon the decision of the Full Court
in Joannou v Joannou. That was a case involving children
aged 8, 7, 5 and 4 where the trial judge had expressed the
view that the obtaining of a welfare report was a waste of
time and that the wishes of the children at this age seemed
to him to be irrelevant. After referring to the children’s
age the following passage appears in the joint judgment of
the Full Court (Pawley, Fogarty and McGovern JJ) at 80-182:
“We do not agree with his Honour that it necessarily
followed from that (the age of the children) that no useful
evidence could be obtained through a counsellor as to the
wishes, attitudes, perception, bonding and the like of the
children. We think there were several defects in his
Honour’s approach to this matter. First we do not agree with
his Honour that evidence of the wishes of children of this
age would be irrelevant; it may or may not have been helpful
depending upon a number of factors which could only become
clear when a counsellor had seen the children and given a
report in relation to these matters. Secondly his Honour
took too narrow a view of this aspect. It is not the wishes
of the children in the narrow sense which is the only
relevant aspect of their being seen by a counsellor in a
custody case. It is the wider aspect of their perceptions,
attitude, relationships towards each other, towards the
other parent and other relevant members of each household,
bonding and the like which is important. In this case,
given the close proximity and the ages of the children, the
fact that the alternatives involved them being widely
separated geographically from one parent or the other, it
would be likely that evidence of an interview with all four
children would have been a helpful piece of material to have
had before determining their custody.”
36. We think that Mr Tilmouth’s first two submissions
involve an essential misunderstanding of what his Honour was
saying. In this case his Honour did have evidence before him
as to the wishes of the children and it is apparent from his
Honour’s judgment, read in the context of the argument which
took place before him that he was prepared to accept that
certainly the older child, and probably the younger child
was desirous of remaining with the father. His Honour
however took the view, with which we agree, that in the
particular circumstances of this case, such views could not
be given great weight. We do not interpret his Honour as
having said that this was only because of the age of the
children in question. The case of Joannou v Joannou was
cited to his Honour and he no doubt had regard to it. In
addition to the children’s age it is apparent that his
Honour took into account the circumstances of their having
lived with their father for six months and the circumstances
of their separation from the wife, the vast difference in
lifestyle involved between living in Australia and Chile and
the fact that the wife had not had an opportunity to
influence their wishes over that six month period. It is
clear that, unlike the trial judge in Joannou’s case his
Honour was not saying that the wishes of the children were
irrelevant but merely that in the particular circumstances
of this case they should be given little weight. Mr Tilmouth
argued that because the wife in her telex and in the
subsequent document had indicated a willingness to abide by
the wishes of the children, that this made it even more
important to obtain an independent assessment of their
wishes in the form of a report.
37. We think that this gives too much significance to an
expressed willingness on her part to compromise in what must
for her be an extremely difficult situation. It was conceded
on behalf of the husband that she could neither afford to
come to Australia or to arrange for legal representation in
this country. She has been cut off from her children as a
result of having agreed that they should come to this
country for a holiday. We are quite unaware of what if any
legal or other advice she has received. The telex upon which
Mr Tilmouth principally relied, was not her document but a
hearsay account of her views. In the circumstances we do not
in any event find it surprising that she has expressed some
degree of willingness to compromise. Despite this it is
apparent from both documents that she not only feels
cheated by what has occurred, but strongly maintains her
rights as a custodial parent and any concession made by her
is extremely limited as to time. Accordingly we do not
think that this argument has substance.
38. Further we do not think that his Honour can be said to
have fallen into error in refusing to order a report under
section 62A of the Act. Despite what the Full Court said in
Joannou’s case we do not think that in every interim custody
case of this nature a judge is obliged to obtain a
counselling report as to the wishes of the children. Further
in this case his Honour already had evidence of the
children’s wishes. There may be many cases in which such a
report is helpful and desirable but in the particular
circumstances of this case we do not think that this was so.
We think that his Honour proceeded upon the basis of an
acceptance of the probability that the children wished to
remain in Australia but that he also considered that their
welfare required their return to Chile. There must be few
cases indeed where it would be appropriate to make interim
custody orders in favour of a non-custodial parent where
children have been permitted to visit the non-custodial
parent in this country for holiday purposes and are
thereafter wrongfully detained by the non-custodial parent.
In this regard it is we think appropriate to refer to the
Convention on the Civil Aspects of International Child
Abduction which came into force in Australia on 1 January
1987. This was referred to before Burton J but his Honour
considered that it had no application because Chile was not
a signatory to the Convention. WMH FN1
39. Although his Honour was correct in saying that the
Convention had no direct application to this case in the
strict sense, we think that it is nevertheless open to a
court, and appropriate in this case, to pay regard to the
policy of the Convention, particularly having regard to the
fact that Australia is a party to it.
40. The operation of the convention was considered by the
Full Court in Gsponer v Gsponer (1989) FLC 92-001. In Re
Jane (1989) 12 Fam LR at 662 Nicholson CJ expressed the
view, after referring to authorities that it was both
permissible and useful to refer to international conventions
not forming part of domestic law in considering the exercise
of discretion.
41. We think that the clear policy of the Convention is
that save in exceptional circumstances, children who have
been removed from their lawful custodial parent in another
country without the authority of a court should be returned
to that parent.
42. In the present case we think it is appropriate to take
this into account as an element to be considered, albeit
subservient to the principle of the paramountcy of the
welfare of the child. As to this we believe the inference is
open from the wife’s behaviour and the various
communications that the wife has a reasonable approach to
the question of the children’s welfare.
43. The husband argued that he could only obtain a hearing
on his application for custody in this court because he said
that he was a political refugee from Chile and that his life
would be endangered if he was to return. There was no
evidence before his Honour or before us as to Chilean law
but it is apparent from the material that there is a system
of Family Law operating in Chile. The children are Chilean
nationals brought up in Chile who have lived with their
mother for six years following separation prior to their
visit to Australia. In these circumstances it seems to us
that if there is any court which should determine their
custodial disposition it is a court of that country. The
husband’s political difficulties about returning to that
country are unfortunate and may restrict his ability to
pursue litigation in the courts of that country but there
was nothing before us or before his Honour to say that he
was precluded from doing so.
44. Finally we do not think that his Honour placed undue
reliance upon the principles set out in Cilento and Cilento.
In the present case we think that his Honour’s order was
appropriate and was indeed the only proper order that could
have been made.
The appeal will accordingly be dismissed.
——————–
1. The Convention entered into force between Australia and
Chile on 01 Nov 1994.