AUSTRALIA – BENNETT – 2000 (Return Denied, Return Ordered on Appeal) DEPERTMENT OF FAMILIES, YOUTH AND COMMUNITY CARE v BENNETT. Mother retains the child in Australia. Father files for return under the Hague Treaty. Lower court denies the return holding it would be “unwise” for the mother to travel to the UK (health reasons). With the mother not there, it would place the child in an ‘intolerable situation”. The decision was reversed on appeal and the child was ordered returned to the UK. The court felt that the courts of the UK were able to handle any concerns raised by the mother.
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DIRECTOR-GENERAL, DEPARTMENT OF FAMILIES, YOUTH ANDCOMMUNITY CARE, Appellant and RHONDA MAY BENNETT, Respondent
Wife (Australia 2000)
Family Court of Australia Appeal No NA 4 of 2000
6 International Abduction (AUSTRALIA 2000)
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FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No NA 4 of 2000
AT BRISBANE File No BR 9671of 1999
BETWEEN:
THE DIRECTOR-GENERAL, DEPARTMENT OF FAMILIES, YOUTH AND
COMMUNITY CARE
Appellant
– and –
RHONDA MAY BENNETT
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: KAY, COLEMAN AND BARLOW JJ
DATE OF HEARING: 22 FEBRUARY 2000
DATE OF ORDERS: 22 FEBRUARY 2000
DATE OF JUDGMENT: 16 MARCH 2000
APPEARANCES:
Mr. Green of Counsel, instructed by C.W. Lohe, Crown Law,
Level 11, State Law Building, 50 Ann Street, Brisbane, Qld
4000, appeared on behalf of the Appellant.
Mr. Hamwood of Counsel, instructed by, Primrose Couper
Cronin Rudkin, Solicitors, 35-39 Scarborough Street,
Southport, QLD 4215, appeared on behalf of the Respondent
Wife.
DFYCC and BENNETT
NA 4 of 2000
Coram: Kay Coleman and Barlow JJ
Date of appeal: 22 February 2000
Date of judgment: 16 March 2000
CATCHWORDS
CHILD ABDUCTION- Hague Convention- child ordinarily resident
in England – Australian born mother retains child in
Australia – mother suffering from depression – mother’s
health might be detrimentally affected by forced return to
England – whether child placed in an “intolerable situation”
if returned without mother- whether return of child if
mother unable to appear in English proceedings a breach of
child’s human rights and fundamental freedoms -relevance of
child’s Torres Strait Island descent – Family Law (Child
Abduction Convention) Regulations r 16(3)(b) and (d)
In February 1999, H and W came to Australia from England
with their 4 year old child, to visit W’s relatives. The
child was born in and had lived all his life in England. On
the date booked for the family to return home, just before
the plane was due to leave, H was informed that W and child
would not be returning to England with him.
After returning to England H commenced Hague Convention
proceedings seeking the return of the child. In response W
alleged that H was abusive towards her from the time they
had cohabited and she was unable to return to UK due to the
fact that she suffered from anxiety and depression stemming
from this abuse. W provided evidence from a psychiatrist to
this effect.
W contended that the child was closely bonded to and
psychologically dependent upon her. She asserted that the
child would lose his primary care-giver should the child be
required to return to UK to determine custody proceedings
and this would result in an “intolerable situation” within
the meaning of Regulation 16(3)(b) of the Family Law (Child
Abduction Convention) Regulations (“the Regulations”).
W’s father is of Torres Strait Island descent and W asserted
a need to educate the child in her cultural heritage. W
submitted that an Australian court would better understand
the needs of a child of Torres Strait Island descent (FLA
s68F(2)(f)).
Hilton J dismissed an application for return of the child
holding that as it would be unwise for W to travel to UK, W
would not able to personally prosecute her case regarding
residence of the child. That would have the effect of
placing the child in an intolerable situation within the
meaning of the Regulations.
His Honour noted that while an English court may consider
the child’s cultural heritage, this factor was not the
subject of any particular legislative enactment. In
contrast s68F(2)(f) and the reasoning in B and R (1995) FLC
92-636 would compel consideration of the significance of the
child’s cultural heritage.
On appeal, the Central Authority contended that the evidence
did not show that W was unable to return to the UK to
prosecute her case, but even if it did this would not place
the child in an “intolerable situation”.
Held (per curiam) upholding the appeal and ordering the
return of the child:
1. The doctor had asserted that returning W to the United
Kingdom would leave her unable to proceed with psychotherapy
because of H’s opposition. However, the nature of the
proceedings before the Court envisaged the return of the
child to England. It did not envisage a return of the child
to the husband, nor did it envisage a return of the wife to
the husband’s household. The doctor’s evidence did not
cover the situation that the return of wife may only be a
temporary return purely for the purposes of litigating as to
the future of the child.
2. Once one of the fundamental assumptions made by the
doctor was found to be unsubstantiated, all that was left
was the doctor’s opinion that the wife suffered from a
medical disorder and that her chances of recovery from it
would be significantly reduced were she dislocated from the
support of her family in Australia. That evidence could not
be seen as creating a bar to the wife returning to the
United Kingdom for the temporary purposes of residence
proceedings, nor did it give any insight into the manner in
which the wife’s symptoms may be ameliorated by therapy and
treatment available for her in England.
3. There was inadequate material before his Honour which
could support his Honour’s ultimate conclusion that it would
be detrimental for W to travel to the United Kingdom.
4. The inability of a parent to be physically present in
court to present their case and/or instruct a legal
representative may place a child in an intolerable situation
within the meaning of reg 16(3)(b), depending upon the
circumstances. This case is not a suitable vehicle for
defining limitations on the principle espoused in State
Central Authority v Ardito (Joske J, ML 1481 of 1987
unreported 29 October 1997). In Ardito the mother was unable
to obtain a visa to return to the USA with a child she had
wrongfully removed. There may be situations of an
intolerable situation arising if a parent is unable to
travel to the country of habitual residence. The fact of an
inability to attend, be it through operation of the laws of
the requesting country or through circumstances personal to
the abduction parent may be sufficient to give rise to the
reg 16(3)(b) defence.
5. As to the child’s Torres Strait Islander descent, there
may be a narrow band of cases where it would be appropriate
to give some consideration to the likely expertise of an
Australian court in dealing with issues relating to
Indigenous Australian heritage where a court reaches the
stage of exercising a discretion as to whether to return the
child or not. However, as a general level, it would be
presumptuous to believe that a foreign court could not
adequately and properly deal with these issues. In this
case, the child’s Torres Strait Islander heritage stems from
one great-great-grandparent. It cannot be said that this is
so dominant an element in the child’s life that only an
Australian court could evaluate the significance of it.
6. The 16(3)(d) exception is extremely narrow and is limited
to circumstances in which the return of the child ought not
be permitted by the fundamental principles of Australia
relating to the protection of human rights and fundamental
freedom. There is nothing to suggest that the return of an
English born child to England would resemble any breach of
any human right or fundamental freedom of the child.
Appeal upheld
Reportable
Introduction
1. On 22 February 2000, we heard an appeal by the State
Central Authority against Hilton J’s dismissal of its
application seeking the return of a child to the United
Kingdom. At the conclusion of the hearing we announced that
the appeal would be allowed and we made orders providing for
the return of the child within 21 days. These are the
reasons why we allowed the appeal.
Background
2. R was born in England in September 1994. His father is
English by birth and his mother is Australian by birth. His
parents married in England in April 1986 and made their home
there. It is convenient to refer to R’s parents as “the
husband” and “the wife”. From 1991 onwards the husband was
unable to work due to psychological illness.
3. The family came to Australia for a visit on 11 February
1999. The husband understood that it was to be a short
visit and the family would return to the United Kingdom at
the conclusion of the visit. The wife had other ideas. She
asserted before Hilton J that she had been very unhappy in
the marriage and had planned to stay in Australia with R and
not return to England. She only communicated this
information to the husband via a letter from her solicitors
delivered by her parents to the husband at Brisbane airport
just as the family were due to board the plane to England on
24 March 1999.
4. The husband was very distressed by this news, and it had
an immediate adverse reaction on his health. He was
forcibly restrained and placed in a psychiatric hospital in
Australia for several days. The wife and child went into
hiding.
5. Upon his discharge from hospital in about April 1999, the
husband returned to the United Kingdom and then commenced
proceedings under the Convention on the Civil Aspects of
International Child Abduction (“the Hague Convention”)
seeking the return of the child to the United Kingdom.
6. An application was brought by the relevant State Central
Authority seeking the return of the child to the United
Kingdom. The application came on for hearing before Hilton
J in Brisbane on 16 December 1999.
7. At the hearing the wife conceded that the habitual
residence of R, immediately prior to his retention in
Australia, was the United Kingdom. It was conceded that
there had been a retention in Australia of the child in
breach of rights of custody of the husband. It was however
asserted that the Court ought not make an order for R’s
return to the United Kingdom because there was a grave risk
that such return would expose R to physical or psychological
harm or otherwise place him in an intolerable situation. It
was further asserted that R’s return to the United Kingdom
would not be permitted by the fundamental principles of
Australia relating to the protection of human rights and
fundamental freedoms.
8. It was the wife’s case that she had overwhelmingly
provided for the care of R and that R was closely bonded to
and psychologically dependent upon her. She asserted that
she was unable for medical reasons to travel to the United
Kingdom and that a forced return of the child would
necessarily separate her from R and leave R in the care of
his father, who was a person experiencing serious
psychological difficulties.
9. It was further asserted that as the wife was unable to
travel to the United Kingdom she would be unable to
effectively prosecute any proceedings for a residence order.
This would mean that the child, once again, would be in an
intolerable situation because issues relating to his welfare
could not be decided by a court hearing at which both of his
parents could effectively participate. Reliance was placed
on the decision of Joske J in State Central Authority v
Ardito (unreported Family Court of Australia, 29 October
1997).
10. Finally, it was submitted on behalf of the wife that R
was a child of Torres Strait Islander descent. It was
submitted that an English court could not properly
understand the ramifications of R’s cultural heritage as
there was no equivalent in the English family law to s
68F(2)(f) of the Family Law Act 1975, which specifically
required a court in Australia when determining what was in a
child’s best interest to consider
“the child’s…background (including any need
to maintain a connection with the lifestyle,
culture and traditions of… Torres Strait
Islanders)…”
The proceedings before Hilton J and his reasons for
judgement
11. It is important to note for the purposes of this appeal
that the proceedings before Hilton J were determined on the
affidavit material provided to his Honour. There was no
viva voce evidence called and no cross-examination of
deponents took place. There was no opportunity sought, nor
was any opportunity taken, to test the credit of any of the
deponents. His Honour had before him conflicting and
untested testimony.
12. The manner in which the proceedings were conducted by
his Honour was consistent with authority. Hague Convention
proceedings are usually determined on the papers. The Hague
Convention is a “hot pursuit remedy” and any delay in the
proceedings is to be avoided if at all possible.
Regulations 15(2) and (4) of the Family Law (Child Abduction
Convention) Regulations 1986 (“the Regulations”) recognise
this need for expedition, although at the same time Reg
15(2) recognises that the matter has to be given “proper
consideration”. We adopt the observations of the Chief
Justice in DM v Director-General, Department of Community
Services (1998) FLC 92-831; 24 Fam LR 168.
13. In DM the Full Court (cor Nicholson CJ, Kay and O’Ryan
JJ) dealt with an application for the return of a child to
Macedonia. The father left Macedonia with the child,
arriving in Australia on 14 April 1998. On 13 April 1998,
upon application by the mother, the Welfare Centre of Veles
in Macedonia determined that, pending court proceedings for
divorce/custody, the child should be returned to the mother.
That decision was affirmed by the Primary Court of Veles on
15 April 1998. On 17 July 1998, an application was filed in
the Family Court of Australia by the Department of Community
Services as the Central Authority seeking the return of the
child pursuant to the Hague Convention. The father resisted
the return of the child and on appeal sought to have the
proceedings adjourned. The Chief Justice said at FLC
85,513; Fam LR 170:
“The principles that govern Hague Convention
cases are somewhat different from other cases.
There are specific provisions in reg 15(2) and
15(4) of the Family Law (Child Abduction)
Regulations which provide for the matters to be
dealt with in a speedy fashion. Regulation 15
(2) provides that:
‘A court must, so far as practicable, give to
an application such priority as will ensure
that the application is dealt with as quickly
as a proper consideration of each matter
relating to the application allows.’
And reg 15(4) provides that:
‘If an application made under regulation 14 is
not determined by a court within the period of
42 days commencing on the day on which the
application is made:
the responsible Central Authority who made the
application may request the Registrar of the
court to state in writing the reasons for the
application not having been determined within
that period; and as soon as practicable after a
request is made, the Registrar must give the
statement to the responsible Central
Authority.’
Presumably, that regulation is referring to the
determination of a matter at first instance,
within the period of 42 days but, in my view,
it is no answer to that proposition to say, as
the appellant has sought to say here, that he
has the right to set his own pace in relation
to the appellate process. That runs entirely
contrary to the spirit and provisions of the
convention. In this regard I refer to the
remarks of Kirby J in De L v The
Director-General of New South Wales Department
of Community Services (1996) 187 CLR 640 at
667; 20 Fam LR 390 at 409; FLC 92-706 at 83,459
where his Honour said:
‘While due allowance must be made for the
complexity of some of the questions raised, the
serious legal interests in apparent conflict,
the novelty of some of the propositions (at
least so far as the higher courts in Australia
are concerned) and the general importance of
the matter as a “test case”, I cannot but agree
with Kay J that the delays have accumulated to
defeat the apparent purposes of the Convention,
the Act and, if they be valid, the Regulations.
By repeated provisions, the Convention
envisages a speedy process and a summary
procedure. The same sense of urgency is
reflected in the Regulations. It is reflected
in judicial observations about the meaning and
purposes of the Convention, and of municipal
laws designed to give it effect [footnotes
omitted].’
It seems to me that that encompasses the
approach that the court should take to
applications of this nature.”
14. It was conceded before us by counsel for the respondent
wife that the finding by the trial Judge that there was a
grave risk that the return of the R to the United Kingdom
would expose him to psychological harm or otherwise place
him in an intolerable situation was not a finding which
involved an exercise of discretion but was an application of
the Regulations which governed the issue as to whether or
not the child should be returned to such of the facts as
were capable of being established.
15. One consequence of the case having been heard only on
the written material is that the trial Judge did not have
any special advantage over this appellate court in making
findings of fact. Such an advantage arises when the trial
Judge has been able to hear the witnesses and assess their
credibility (see Warren v Coombes (1979) 53 ALJR 293; 23 ALR
405; Re C (Abduction) [1999] 2 FLR 478 at 486).
16. The husband asserted that he had shared in the care of
the child, and that as he had not been in employment at all
during the life of the child, he had been home to help in
the child’s care. The wife asserted that she was the one
who overwhelmingly provided for the care of the child. The
trial Judge had no opportunity to assess the veracity of
either witness on this issue.
17. His Honour reached a conclusion that
“on the evidence contained in the affidavit
material I incline to the view that this [the
wife has overwhelmingly provided for the care
of the child] is the case.”
In order to reach that conclusion his Honour had to discount
the evidence of the husband as being the less probable of
the two stories facing him. This was a situation in which
both parents had been in the home for the entire duration of
the child’s life. There was no clear uncontested evidence
to suggest that the circumstances of the parties was such
that inevitably the care of the child fell on the shoulders
of one parent rather than the other.
18. His Honour then turned to the wife’s claim that she was
“unable for medical reasons to travel to the United
Kingdom”. The medical evidence was contained in an
affidavit by Dr Andrew Byth, a psychiatrist, who had seen
the wife on 2 November 1999 for the sole purpose of
preparing a report to the Court. He was not the wife’s
treating psychiatrist and there was no evidence that the
wife has not undertaken further psychiatric treatment in
Australia. His Honour set out paragraphs 10, 11 and 12 of
Dr Byth’s report which read (emphasis added):-
“10. Clinical Course
10.1 She began to gradually develop anxiety
and depression around 1990, in response to her
husband’s changed behaviour and her subsequent
unhappiness about the deterioration of their
marriage.
10.2 She was disturbed by his unpredictable
and contradictory behaviour and attitudes,
which she believed stemmed from his mental
illness since 1990. Her anxiety and depression
were increased by her fear of unpredictable
episodes of verbal and physical abuse.
10.3 Her symptoms of anxiety and depression
reached clinically significant levels when she
underwent counselling in 1994. Her therapy was
prematurely terminated by her husband.
10.4 Her symptoms continued to worsen between
1994 and 1999, and reached a peak of intensity
during her visit to her family in Australia in
early 1999.
10.5 Since she separated from her husband, and
has undergone therapy in Australia, her
symptoms appear to be slowly improving. She is
also receiving significant support and
understanding from her parents.
11. Prognosis
11.1 If she is able to remain in Australia,
and continue in individual and group therapy,
and receive support from her parents, I believe
it is likely that her Adjustment Disorder will
slowly improve over the next 12-24 months.
11.2 If she were forced to return to the
United Kingdom, she would be unable to proceed
with psychotherapy, because of her husband’s
opposition. Her prognosis would be worsened
also by isolation from her family supports in
Australia, which are a crucial part of her
requirements for recovery.
12. Discussion and Recommendations
12.1 Rhonda Bennett is suffering from a
Chronic Adjustment Disorder with mixed anxious
and depressed moods. She suffers from
clinically significant anxiety and depression,
which have stemmed from difficulties within her
marriage since 1990.
12.2 I believe that it would be unsafe and
unwise [for] her to travel to United Kingdom.
She requires ongoing outpatient counselling in
Australia for treatment of her Adjustment
Disorder. Her condition would be likely to
relapse if she were forced to travel to the
United Kingdom.
12.3 Her chance of recovery from Adjustment
Disorder would be significantly reduced she
would dislocated [sic] from support from her
family in Australia. She also would lack any
form of financial support if she returned to
the United Kingdom.
12.4 She has a vulnerable and sensitive
personality type, and has been subjected to a
long period of apparently intimidatory and
unpredictable behaviour from her husband. Her
apprehension about the possibility of further
verbal and physical abuse is currently still
contributing to perpetuate her Adjustment
Disorder.
12.5 It would not be medically sound from her
[sic] to return to the United Kingdom, and
thereby place herself in such stressful
circumstances again. There is a high
likelihood that her anxiety and depression be
worsened by a return to these circumstances.
12.6 I was particularly concerned by her
history of her husband’s refusal to allow her
to undertake psychotherapy. I believe this is
another reason why she should remain in
Australia, to receive the correct treatment she
requires for her Adjustment Disorder.
12.7 She presents as a very caring and highly
motivated parent towards her son and is very
keen to see that the boy is properly cared for.
With the assistance of her parents, I believe
that she is capable of satisfactorily raising
her son, despite the presence of her Adjustment
Disorder.”
19. His Honour observed:
“This is the only evidence before me as to the
wife’s health”.
He then said:
“The report of Dr Byth was not challenged in
any particular. I accept his evidence and in
the circumstances, on the evidence before me,
having found that the wife has been the primary
caregiver to the child, I find that she should
not have to return to the United Kingdom and in
all likelihood endanger her mental health.”
20. It was strenuously argued before us, and we think
correctly, that underpinning the doctor’s recommendations
was a false premise. The doctor emphasises in par 11.2 why
it would be detrimental for the wife to travel to the United
Kingdom. He asserts two reasons, the first of which is that
a return to the United Kingdom would leave her unable to
proceed with psychotherapy because of her husband’s
opposition.
21. The nature of the proceedings before the Court envisaged
the return of the child to the United Kingdom. It did not
envisage a return of the child to the husband, nor did it
envisage a return of the wife to the husband. There was no
evidence placed before the Court to indicate that it would
be impossible for the wife to live in England apart from the
husband, nor was it suggested that once in England the wife
would be unable to obtain any appropriate psychotherapy.
Finally, there was no consideration at all by the doctor of
the proposition that the return of the wife might only be a
temporary return purely for the purposes of litigating as to
the future of the child.
22. It was submitted to us, and we think soundly, that once
one of the fundamental assumptions made by Dr Byth is found
to be unsubstantiated, all that is left is the doctor’s
opinion that the wife suffers from a Chronic Adjustment
Disorder and that her chances of recovery from it would be
significantly reduced were she dislocated from the support
of her family in Australia.
23. In our view, that evidence could not be seen as
indicating a bar to the wife returning to the United Kingdom
for the temporary purposes of litigating over the future
welfare of the child, nor did it give any insight into the
manner in which the wife’s symptoms may be ameliorated by
therapy and treatment available for her in England.
The Family Law (Child Abduction Convention) Regulations
24. Once it is established that the child, the subject
matter of proceedings under the Regulations, has been
wrongfully retained in Australia then an order for the
return of the child must be made unless one of the
prescribed defences is established. Here the wife sought to
rely on Reg 16(3)(b) and (d) which state:-
“16. (1) 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 the application was
filed is less than 1 year after the day on
which the child was removed to, or first
retained in, Australia…
…
(3) A court may refuse to make an order under
subregulation (1) if a person opposing return
establishes that:
…
(b) there is a grave risk that the return of
the child to the country in which he or she
habitually resided immediately before the
removal or retention would expose the child to
physical or psychological harm or otherwise
place the child in an intolerable situation; or
…
(d) the return of the child would not be
permitted by the fundamental principles of
Australia relating to the protection of human
rights and fundamental freedoms.”
25. Sub-regulations 16(3) (b) and (d) reflect the provisions
of Articles 13(b) and 20 of the Convention on the Civil
Aspects of International Child Abduction (“the Hague
Convention”). When Articles 13 and 20 were drafted, the
negotiating countries expressed the view that the exceptions
must be drawn and construed narrowly so that the purpose of
the Convention was not compromised. (Legal Analysis of the
Hague Convention on the Civil Aspects of International Child
Abduction prepared by the US State Department 51 Fed Reg
10,503 (1986) at 10,509).
26. At the second Special Commission meeting to review the
operation of the Convention (18-21 January 1993) when
initiating discussion on the exceptions to mandatory return,
Adair Dyer (First Secretary) stressed that as Art 13
counteracts the main aim of the Convention – to secure the
return of a wrongfully abducted child – the exceptions
should be used very carefully, and not at all excessively.
(Report of the Second Special Commission meeting to review
the operation of the Hague Convention on the Civil Aspects
of International Child Abduction (18-21 January 1993) drawn
up by the Permanent Bureau; Sourced from
http://www.hiltonhouse.com). Discussion at the Special
Commission revealed that Art 13 has been given a narrow
interpretation in most jurisdictions and that in only a few
cases are the exceptions found to apply.
27. The narrow nature of these exceptions to mandatory
return has been noted in many reported decisions.
Australian courts have predominantly pursued the aims of the
Convention vigorously and insist on a strict and narrow
reading of the exceptions. In Director General of Family
and Community Services v Davis (1990) FLC 92-182 Nygh J,
with whom Strauss and Rowlands JJ agreed, stated (at
78,226):
“It is, therefore, the intention of the
Convention and the Regulations which implement
it to limit the discretion of the court in the
country to which the children have been taken
quite severely and stringently.”
28. In Gsponer v Johnstone (1989) FLC 92-001; (1988) 12 Fam
LR 755 the Full Court dealt with an application for the
return of a child to Switzerland after the child had been
brought to Australia by her mother without his father’s
consent. The mother made it clear both to the father and in
material filed in the proceedings that she did not desire or
intend to return with the child to Switzerland. The Court
said of Reg 16(3)(b), (at FLC 77,160 ; Fam LR 768):-
“…reg 16(3)(b) has a narrow interpretation.
It is confined to the ‘grave risk’ of harm to
the child arising from his or her return to a
country which Australia has entered into this
Convention with. There is no reason why this
court should not assume that once the child is
so returned, the courts in that country are not
appropriately equipped to make suitable
arrangements for the child’s welfare. Indeed
the entry by Australia into this Convention
with the other countries may justify the
assumption that the Australian Government is
satisfied to that effect
…
We agree with the comment of Kay J in Re
Lambert (Family Court of Australia, 3 April
1987, unreported) that ‘the Convention is
clear. In my view, the exceptions to it are
likely to be few and far between…'”
29. In Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996)
the United States Federal Court enumerated those types of
dangers which might be considered to create a “grave risk”
of the type of harm envisioned by the Convention:
“Although it is not necessary to resolve the
present appeal, we believe that a grave risk of
harm for the purposes of the Convention can
exist in only two situations. First, there is
a grave risk of harm when return of the child
puts the child in imminent danger prior to the
resolution of the custody dispute–e.g.,
returning the child to a zone of war, famine,
or disease. Second, there is a grave risk of
harm in cases of serious abuse or neglect, or
extraordinary emotional dependence, when the
court in the country of habitual residence, for
whatever reason, may be incapable or unwilling
to give the child adequate protection.”
30. Similarly, the English Court of Appeal commented in Re M
(Abduction: Psychological Harm) [1997] 2 FLR 690 (at 695):
“Because of the strict requirements, few cases
in England have crossed the Art 13 threshold
and it is clearly shown from decisions of this
court that it is only in exceptional
circumstances that a court should not order
summary return.”
31. In Re C (Abduction: Grave risk of psychological harm)
[1999] 1 FLR 1145 at 1154, the Court of Appeal remarked in
relation to psychological harm:
“There is, therefore, an established line of
authority that the court should require clear
and compelling evidence of the grave risk of
harm or other intolerability which must be
measured as substantial, not trivial, and of a
severity which is much more than is inherent in
the inevitable disruption, uncertainty and
anxiety which follows an unwelcome return to
the jurisdiction of the court of habitual
residence.”
32. In Issak, A v Issak, P (March 3 1993, PS 5382/92) Chaim
Porat J, District Court of Israel ordered the return of
children to the United States and commented that:
“The burden of proof required to show grounds
for the defence pursuant to Section 13(b) of
the Hague Convention is heavy… The children
will now have to be separated from their mother
after having become attached to her following
the abduction. But that is harm which is
present in every abduction and is not such as
to warrant a refusal to return abducted
children.”
33. Kirby J, in his dissenting judgment in De L v Director
General, Department of Community Services (1996) FLC 92-706
at 83,470; 20 Fam LR 390 at 423-4; 187 CLR 640 observed:
“The structure of the Convention, as of the
regulations, is ordinarily to require the
return of the child unless a relevant exception
is established. Any other construction would
tend to undermine the achievement of the
purposes of the Convention and of the
regulations incorporating it.”
34. The majority judgment in De L v Director General,
Department of Community Services emphasised that the then
relevant Regulation concerning the manner in which the Court
paid attention to the child’s objections to being returned
did not need to be read narrowly. The Hague Convention was
noted to be the result of a compromise (at FLC 83,450; Fam
LR 394; CLR 649):
“The nature of the compromise has been
identified as follows (Anton, “The Hague
Convention on International Child Abduction”
(1981) 30 International and Comparative Law
Quarterly 537 at 550):
‘Most delegates at The Hague were agreed that,
after a wrongful removal to or retention in
another country, its courts – in principle at
least – should order the return of the child
forthwith without entering into the merits of
any custody dispute between the parties. Some
delegates, indeed, argued that the achievement
of the main purpose of the Convention would be
imperilled if the door were left even slightly
ajar to abductors to justify the new situation
of the child by an inquiry in the State to
which the child had been abducted into what
allocation of custody rights was in the best
interests of the child. Other delegates, while
accepting that in principle an abducted child
should be returned forthwith, considered that
in certain cases a departure from this
principle might be justified in the interests
of the child …
What emerged was inevitably a compromise. It
was agreed that a refusal to return the child
should not be based on public policy or any
analogous general ground. The Convention should
rather limitatively enumerate the exceptions
which it allowed.'”
35. Those observations concerning the then form of Reg 16
regarding the child’s objections, were distinguished by the
majority judgment from the long line of foreign cases
concerning the narrow application of the other Reg 16
defences which concerned the enactment of Article 13. That
Article requires the party seeking to rely on one of the
other defences to establish the existence of such a defence,
whilst the “child objection” defence carries with it no such
onus. As the defences relied upon in this case require the
establishment of their existence by “the person opposing
return”, the broader approach adopted by the majority
judgment in De L does not impinge upon the strong line of
authority both within and out of Australia, that the Reg
16(3)(b) and (d) exceptions are to be narrowly construed.
Was there a grave risk of harm or an intolerable situation?
36. In our view, Hilton J should not have been satisfied
that the Reg 16(3)(b) criteria had been established. The
doctor had said, and the Judge had accepted, that the wife
should not return to the United Kingdom due to her poor
health, because:
* she could not obtain appropriate therapy in the
United Kingdom; and
* she would be without the support of her family.
37. As already indicated, there was no appropriate basis for
the first of those findings. Accordingly, there was
inadequate material before his Honour which could support
his Honour’s ultimate conclusion that it would be so
detrimental to the wife’s health to travel to the United
Kingdom that she was effectively barred from so doing.
If the wife was unable to travel was that an intolerable
situation?
38. Once having reached the conclusion that the wife’s
health effectively precluded her from returning to the
United Kingdom, his Honour said:
“If the wife were not able to personally
prosecute her case in respect of residence
because of her health, it would have the effect
of placing the subject child in an intolerable
situation.”
39. Reference was made to the decision of Joske J in State
Central Authority v Ardito (supra). In Ardito, an
Australian mother had removed a child habitually resident in
America to Australia. The mother was unable to obtain a
visa to return to the United States to prosecute any
proceedings relating to the custody of the child. In those
circumstances, Joske J held that her inability to partake in
the proceeding amounted to placing the child in an
intolerable situation should the child be returned to the
United States. His Honour said at p 40:
“In my view the fact that the respondent is
unable to gain entry into the United States for
the purposes of appearing in these proceedings,
amounts to what can only be described as a
serious denial of natural justice. The right
to be heard is a fundamental requirement of
natural justice…Accordingly, I am of the
opinion that the fact that the respondent has
been denied entry into the United States
constitutes a grave, or in this case an almost
certain risk that the child Bittany was placed
in an intolerable situation.”
40. In Director-General, DFYCC (Qld) v Hobbs [1999] Fam CA
2059, Lindenmayer J described the mother in Ardito as being
“precluded, as a matter of law, from entering the United
States and contesting the proceedings.” Joske J was thus
said to have:
“ultimately concluded that it would place the
child in an intolerable position if, having
been ordered to be returned to the United
States, the child’s mother would be precluded,
as a matter of law, from appearing there and
contesting the issue of her custody.”
41. Counsel for the State Central Authority has urged upon
us to limit the application of the principles identified by
Joske J in Ardito to the peculiar facts where an inability
to attend at the proceedings is brought about by the laws of
the country to which the child is sought to be returned. It
has been urged upon us that we should not allow those
principles to be extended to situations that arise by reason
of “the circumstances of the abducting parent”. It was
submitted to us that the denial of natural justice
identified by Joske J was something brought about by the
laws of the requesting country and not by the personal
circumstances of the abductor.
42. The State Central Authority in its submissions said as
follows:
“The Appellant accepts the importance of the
abducting parent being able to meaningfully
participate in and have input into the
judicial/administrative decision making process
about the welfare of the child, made by those
bodies in the requesting country. To that
extent, the Appellant does not assert that
Ardito was wrongly decided. However, the
Appellant challenges that in every case, such
meaningful input can only be achieved by the
abducting parent/person being physically
present to provide instructions and conduct the
case. It is submitted that to the extent
Ardito stands for this proposition, then it has
been incorrectly decided.”
43. It was submitted that the inability of a party to be
physically present in court to present their case and/or
instruct a legal representative should not be viewed as a
rigid requirement of natural justice in every case. It may
be that the courts of the requesting country have or are
able to put in place facilities and/or procedures that allow
a party to meaningfully take place in a hearing without
being physically present. An obvious example is the
availability of telephone and video links.
44. The State Central Authority further submitted:
“…that the onus of proof is upon the
respondent to adduce evidence which establishes
that they will not be unable to meaningfully
take part in the decision making process which
will decide where and with whom the child lives
such that a fair hearing cannot be had. This
is not automatically satisfied by establishing
the abducting person is unable to be physically
present in the requesting country. There is no
such evidence to establish in the present
case.”
45. We do not consider that this case is a suitable vehicle
for defining the limitations on the Ardito principle. We
have already concluded that his Honour erred in accepting
that the evidence satisfied the Reg 16(3)(b) defence. As
such, the issue of the so-called Ardito principle, namely
the effect of the inability of the abducting parent to
attend at the hearing, does not arise in this case.
46. We would observe, however, that the line urged upon us
by the State Central Authority, that Ardito should be
limited to circumstances where the return of the abductor to
the place of return of the child is impeded or prohibited by
the law of the requesting country, may place too much of a
fetter on the trial Judge’s capacity to find circumstances
in which the return of the child could be considered to be
intolerable.
47. By way of example, where a very young baby was
wrongfully removed or retained in circumstances that would
otherwise lead to its return being ordered, if it was being
breast-fed by its “abducting” mother and her personal
circumstances genuinely precluded her return with the child
(eg. her medical condition or perhaps even her
incarceration), then the Reg 16(3)(b) exception might be
made out. In Re G (Abduction: Psychological Harm) [1995] 1
FLR 64 Ewbank J declined to order the return of a child to
the USA when the evidence demonstrated that a forced return
of the mother (who would not part from the three very young
children) carried with it a likelihood that she might become
psychotic, and that such a serious deterioration in her
health would adversely affect the children.
48. Cases involving the welfare of the child at appellate
level frequently emphasise the special position of a trial
Judge in being able to evaluate the parties and their
proposals. That special position must clearly be diminished
if both of the parties are unable to attend at the hearing
concerning the welfare of the child. The fact of an
inability to attend, be it through operation of the laws of
the requesting country or through circumstances personal to
the abducting parent, may be sufficient to give rise to the
existence of the Reg 16(3) defence. The matter would then
move from requiring a mandatory return into determining
whether a return is still appropriate.
49. In those circumstances, the court would then need to pay
attention to whether the competing and conflicting reasons
would make it still appropriate to return the child
notwithstanding the existence of the “intolerable”
situation. By way of example, a violent abduction of a
child from a requesting country in circumstances where there
existed long standing orders granting the custody of the
child to the parent left behind could well lead to the
child’s return being ordered even though a Reg 13 defence
was shown to exist. In Karides (ML 2927/95 unreported 23
May 1996) the mother took a 2 month old child from the USA
to Australia then hid from authorities for some 18 months.
Whilst her “grave risk” defences were rejected, Kay J
expressed a view about the exercise of discretion in case
his conclusions about those defences were wrong. He said (at
23-24):
“In my view whilst there are several features
of this case that make it appropriate to
exercise discretion not to order the child’s
return in favour of the mother, namely the
tender age of the child and the fact that the
child has only known the mother as a parent,
there are countervailing issues which make it
appropriate that I return the child.
This is a classic case of exactly what the
Hague Convention is aimed at avoiding.
International abduction of children has long
been considered to be a significant social
evil. It is difficult to see how it is
possible to suggest that the abductor should be
rewarded by the success with which they have
been able to place themselves underground,
perhaps aided and abetted by others near and
dear to them.
This child has been deprived for its formative
months of a relationship with its father. It
appears to have been deprived of that
relationship solely by the behaviour by the
mother, and those offering her succour. In my
view Adam is entitled to the opportunity to
have a court determine whether or not his
father is the most appropriate person to raise
him or whether his mother is the most
appropriate person to raise him, and to have
determined what relationship he should have
with his non-custodial parent. In my view
there is nothing in the material before me that
precludes the wife from returning to the United
States to litigate such issues.
Whilst I recognise there is unlikely to be
freely available legal aid in the United
States, there is nothing put before the Court
which would indicate that the wife would not
otherwise have resources sufficient to provide
for herself and conduct litigation within the
United States. She has managed to be
significantly resourceful enough to stay
underground within Australia for some fifteen
months. Further, I am certain that the courts
in the United States, like the courts here,
entertain applications by litigants in person.
Notwithstanding each of the matters identified
by Justice Lindenmayer in Regino’s case (1995)
FLC 92-587, in my view I would exercise my
discretion adversely to the wife and order the
immediate return of the child to the United
States. (See also N v N (1995) 1 FLR 107).”
Human rights and fundamental freedoms
50. Ground 8 of the notice of appeal raises arguments that
would arise if it could be said that the facts fell within
the exceptions contained in Reg 16(3)(d) [set out at par. 24
above]. Whilst the trial Judge recognised that submissions
were being made to him in reliance of that sub-regulation,
his Honour never dealt with those submissions beyond
identifying them. His Honour said:
“The second ground of the wife’s case was based
on Regulation 16(3)(d) of the Family Law (Child
Abduction Convention) Regulations. For the
medical reasons which I have previously
referred to, it is stated that the wife will be
unable to return to the United Kingdom. That
is not strictly correct. She will be able to
return to the United Kingdom, but I find on the
evidence before me that due to her poor health,
she should not return to the United Kingdom.
That being so, she would be unable to be
present and participate in proceedings in
relation to the custody/residence of the child.
To that extent she would be denied natural
justice, according to Mr Hamwood, as she would
be denied the basic right to effectively
participate in proceedings with respect to the
welfare of the child. This submission is
supported to some extent by Joske J.’s decision
in the case of the State Central Authority v.
Ardito (supra).”
51. Once the submission was identified by his Honour, his
Honour turned to submissions that were being put on the
basis that the child was of Torres Strait Island descent and
as such somehow required an Australian court to adjudicate
on its future because the Family Law Act recognised the
special significance of the child’s Torres Strait Island
culture and heritage.
52. Again, beyond identifying those arguments, it is not
clear that his Honour in fact in any way relied upon them.
In his conclusion he said:
“I am conscious of the fact that the Family Law
(Child Abduction) Regulations should not be
departed from lightly: Indeed, for the
Convention to operate effectively it is only
in, one might say, dire cases that there should
be a departure. I have adverted to the
intolerable situation that will occur if this
matter was remitted to the United Kingdom for
hearing and having regard to the circumstances
which I have set out in this judgment, I find
that this matter should be determined in
Australia.”
53. Giving that passage the most generous interpretation
that we can, we think that what his Honour was there saying
was that if a ground for refusing mandatory return of the
child existed, namely that because the mother could not
travel to the United Kingdom because of her health, there
would be two effects on the child; firstly, that he would
be separated from his primary caregiver; and, secondly that
he would be denied the opportunity in England of having both
parents being able to properly present their case before the
English courts to decide the child’s future.
54. Again, giving that passage a generous interpretation, we
see his Honour as saying that he had been satisfied that an
exception to mandatory return had been established and, a
consideration for the exercise of his discretion was that,
additional to the absence of the mother from the child and
her inability to partake in English proceedings, the child
because of his Torres Strait Islander descent would be more
likely to have his welfare provided for by a trial in
Australia rather in the United Kingdom.
55. It is unnecessary for us to comment very extensively in
respect of the latter part of this exercise as we have
already indicated that in our view the Reg 16(3)(b)
exception has not been established in this case.
Protection of Human Rights and Fundamental Freedoms.
56. The Reg 16(3)(d) exception is extremely narrow and is
limited to circumstances in which the return of the child
ought not be permitted by the fundamental principles of
Australia relating to the protection of human rights and
fundamental freedoms. There is nothing demonstrated
whatsoever in respect of a return of an English born child
to England which would resemble any breach of any human
right or fundamental freedom which this child possessed.
Regulation 16(3)(d) derives from Art 20 of the Convention.
According to the Report of the Second Special Commission
meeting to review the Convention’s operation, Art 20 was
inserted because the Convention might never have been
adopted without it, and it was intended as a provision which
could be invoked on the rare occasion that the return of a
child would utterly shock the conscience of the court or
offend all notions of due process.
57. In McCall and McCall; State Central Authority
(Applicant); Attorney-General of the Commonwealth
(Intervener) (1995) FLC 92-551 the Full Court declined to
find that the return of a child to England, without treating
its individual welfare as paramount, would be in breach of
Reg 16(3)(d). The Full Court said of the Second Commission
Report at 81,519:
“The point is made that to be able to refuse to
return a child on the basis of this Article, it
would be necessary to show that the fundamental
principles of the requested State concerning
the subject matter of the Convention do not
permit it; it will not be sufficient to show
merely that its return would be incompatible,
even manifestly incompatible with these
principles.”
Their Honours then went on to say:
“It is clear that the applicant in the present
case could not satisfy these tests and indeed
it is difficult to imagine a situation in which
this test could be satisfied as a distinct test
from that set out in Regulation 16(3)(b).
However, that issue can no doubt be resolved in
the future.”
58. The Hague Convention was accompanied by an explanatory
report prepared by E. Perez-Vera, (see Hague Conference on
Private International Law, Actes et documents de la
Quatorzieme session,vol. Ill, 1980, p. 426). In its
discussion of the exceptions to mandatory return the report
says:
“31….there is no obligation to return a child
when, in terms of article 20, its return `would
not be permitted by the fundamental principles
of the requested State relating to the
protection of human rights and fundamental
freedoms’. Here, we are concerned with a
provision which is rather unusual in
conventions involving private international
law, and the exact scope of which is difficult
to define. Although we shall refer to the
commentary on article 20 for the purpose of
defining such scope, it is particularly
interesting to consider its origins here. This
rule was the result of a compromise between
those delegations which favoured, and those
which were opposed to, the inclusion in the
Convention of a `public policy’ clause.
The inclusion of such a clause was debated at
length by the First Commission, under different
formulations. Finally, after four votes against
inclusion, the Commission accepted, by a
majority of only one, that an application for
the return of a child could be refused, by
reference to a reservation which took into
account the public policy exception by way of a
restrictive formula concerning the laws
governing the family and children in the
requested State. The reservation provided for
was formulated exactly as follows: `Contracting
States may reserve the right not to return the
child when such return would be manifestly
incompatible with the fundamental principles of
the law relating to the family and children in
the State addressed’. The adoption of this text
caused a serious breach in the consensus which
basically had prevailed up to this point in the
Conference proceedings. That is why all the
delegations, aware of the fact that a solution
commanding wide acceptance had to be found,
embarked upon this road which provided the
surest guarantee of the success of the
Convention.
32 The matter under debate was particularly
important since to some extent it reflected two
partly different concepts concerning the
Convention’s objects as regards the return of
the child. Actually, up to now the text drawn
up by the First Commission (like the
Preliminary Draft drawn up by the Special
Commission) had limited the possible exceptions
to the rule concerning the return of the child
to a consideration of factual situations and of
the conduct of the parties or to a specific
evaluation of the interests of the child. On
the other hand, the reservation just accepted
implicitly permitted the possibility of the
return of a child being refused on the basis of
purely legal arguments drawn from the internal
law of the requested State, an internal law
which could come into play in the context of
the quoted provision either to `evaluate’ the
fight claimed by the dispossessed parent or to
assess whether the action of the abductor was
well-founded in law. Now, such consequences
would alter considerably the structure of the
Convention which is based on the idea that the
forcible denial of jurisdiction ordinarily
possessed by the authorities of the child’s
habitual residence should be avoided.
33 In this situation, the adoption by a
comforting majority 16 of the formula which
appears in article 20 of the Convention
represents a laudable attempt to compromise
between opposing points of view, the role given
to the internal law of the State of refuge
having been considerably diminished. On the one
hand, the reference to the fundamental
principles concerning the protection of human
rights and fundamental freedoms relates to an
area of law in which there are numerous
international agreements. On the other hand,
the rule in article 20 goes further than the
traditional formulation of ‘public policy’
clauses as regards the extent of
incompatibility between the right claimed and
the action envisaged. In fact, the authority
concerned, in order to be able to refuse to
order the return of the child by invoking the
grounds which appear in this provision, must
show not only that such a contradiction exists,
but also that the protective principles of
human rights prohibit the return requested.
…
Articles 13 and 20 – Possible exceptions to the
return of the child
113 In the first part of this Report we
commented at length upon the reasons for, the
origins and scope of, the exceptions contained
in the articles concerned. We shall restrict
ourselves at this point to making some
observations on their literal meaning. In
general, it is appropriate to emphasize that
the exceptions in these two articles do not
apply automatically, in that they do not
invariably result in the child’s retention;
nevertheless, the very nature of these
exceptions gives judges a discretion – and does
not impose upon them a duty – to refuse to
return a child in certain circumstances.
114 With regard to article 13, the
introductory part of the first paragraph
highlights the fact that the burden of proving
the facts stated in sub-paragraphs a and a* is
imposed on the person who opposes the return of
the child, be he a physical person, an
institution or an organization, that person not
necessarily being the abductor. The solution
adopted is indeed limited to stating the
general legal maxim that he who avers a fact
(or a right) must prove it, but in making this
choice, the Convention intended to put the
dispossessed person in as good a position as
the abductor who in theory has chosen what is
for him the most convenient forum.
…
116 The exceptions contained in b deal with
situations where international child abduction
has indeed occurred, but where the return of
the child would be contrary to its interests,
as that phrase is understood in this
sub-paragraph. Each of the terms used in this
provision is the result of a fragile compromise
reached during the deliberations of the Special
Commission and has been kept unaltered. Thus it
cannot be inferred, a contrario, from the
rejection during the Fourteenth Session of
proposals favouring the inclusion of an express
provision stating that this exception could not
be invoked if the return of the child might
harm its economic or educational prospects,
that the exceptions are to receive a wide
interpretation.
…
118 It is significant that the possibility,
acknowledged in article 20, that the child may
not be returned when its return ‘would not be
permitted by the fundamental principles of the
requested State relating to the protection of
human rights and fundamental freedoms’ has been
placed in the last article of the chapter: it
was thus intended to emphasize the always
clearly exceptional nature of this provision’s
application. As for the substance of this
provision, two comments only are required.
Firstly, even if its literal meaning is
strongly reminiscent of the terminology used in
international texts concerning the protection
of human rights, this particular rule is not
directed at developments which have occurred on
the international level, but is concerned only
with the principles accepted by the law of the
requested State, either through general
international law and treaty law, or through
internal legislation. Consequently, so as to be
able to refuse to return a child on the basis
of this article, it will be necessary to show
that the fundamental principles of the
requested State concerning the subject matter
of the Convention do not permit it; it will not
be sufficient to show merely that its return
would be incompatible, even manifestly
incompatible, with these principles. Secondly,
such principles must not be invoked any more
frequently, nor must their invocation be more
readily admissible than they would be in their
application to purely internal matters.
Otherwise, the provision would be
discriminatory in itself, and opposed to one of
the most widely recognized fundamental
principles in internal laws. A study of the
case law of different countries shows that the
application by ordinary judges of the laws on
human rights and fundamental freedoms is
undertaken with a care which one must expect to
see maintained in the international situations
which the Convention has in view.”
59. As far as the Torres Strait Islander issue was
concerned, we consider that such a submission might be open
in appropriate factual circumstances where a court reaches
the stage of exercising its discretion as to whether to
return the child or not. There might well be evidence of
circumstances where a child of Aboriginal or Torres Strait
Islander descent has been habitually resident in a
requesting country and either wrongfully removed from that
country or wrongly retained in Australia. At the time of
the hearing for summary return of the child, a recognised
exception is established and an issue then arises as to
whether or not in the exercise of discretion the child ought
be returned to the requesting country. In such
circumstances then an issue such as the likely special
expertise of the local tribunal to deal with such issues as
has been identified in B and R (1995) FLC 92-636 can be
given consideration. Generally, however, it would be
presumptuous to believe that a foreign court could not
adequately and properly deal with these issues. That said,
there may very well be a narrow band of cases where it would
be appropriate to give some consideration to the likely
special expertise of an Australian court in dealing with
issues relating to aboriginality or Torres Strait Islander
heritage.
60. In this case, however, the threshold of needing to
determine that consideration has never arisen. This child
has one great-great-grandparent who was a Torres Strait
Islander. The mother emphasises her heritage and indicates
that it is an important part of the child’s life. It
cannot, however, be said to be likely to be so dominant an
element in the child’s life that only an Australian court
could evaluate the significance of it.
Conclusions
61. This appeal was allowed because the evidence did not
establish that the return of R to England would expose him
to a grave risk of physical or psychological harm or
otherwise place him in an intolerable situation. At its
highest the evidence established that R’s mother’s health
might be deleteriously affected if she accompanied him to
England, was parted from the support of her family and was
prohibited from obtaining appropriate treatment in England.
There was no evidence to support the existence of the latter
condition.
62. It may be open to a court in an appropriate case to
refuse to order the return of a child where the personal
circumstances of either parent prohibit that parent from
returning to the country where it is sought to send the
child. This was not such a case.
63. The return of a child of Aboriginal or Torres Strait
Islander heritage to a foreign country child is not per se
in breach of any fundamental principle of Australia relating
to the protection of human rights and fundamental freedoms.
The ability of a foreign court to give proper consideration
to such heritage would only arise if an exception to
mandatory return was otherwise established.