AUSTRALIA – GAZI – 1992

AUSTRALIA – GAZI – 1992 (1992) GAZI v GAZI

FAMILY LAW ACT 1975IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY WMH FN-1

Appeal No. EA85 of 1992
File No. SY9127 of 1992

IN THE MARRIAGE OF:

WILLIAM GUILLAUME GAZI, (previously known as Al Ghazi)
Appellant/Husband

– and –

JULIA ANN GAZI, (previously known as Al Ghazi)
Respondent/Wife

REASONS FOR JUDGMENT

BEFORE: Ellis, Nygh and Ross-Jones JJ.
HEARD: 15th and 18th day of December 1992
JUDGMENT: 18th day of December 1992

APPEARANCES: Mr W. G. Gazi, of 21 Hopetoun Street, Hurlstone
Park, 2193, appeared in person.

Mr. Pertsinidis, Solicitor, instructed by H. K.
Roberts, Crown Solicitor, 8-12 Chifley Square,
Sydney, appeared for the Central Authority.

There was no appearance by or on behalf of the
respondent wife.
Catchwords: Child abduction – child brought from overseas by
husband – Hague Convent1on on the Civil Aspects
of International Child Abduction – whether
husband could cross-examine wife – summary nature
of proceedings.

Appeal – refusal of stay of operation of orders.

The parties commenced to cohabit in France in 1979 and
migrated to Australia in 1981 where they married in 1984. They
returned to France in 1989. Two children were born in Australia,
the eldest in June 1985 and the second in December 1988. A third
child was born in France in 1991. In October 1992, the wife
petitioned a French Court for a separation order. On 19 October,
that Court made an order permitting the wife to live separately
from the husband and with the children and which was described by
the trial Judge in her reasons for judgment as an order for
interim custody. On 24 October 1992, the husband travelled to
Australia with the two elder children alleging that the wife
consented to or acquiesced in the removal from France. This the
wife denied.

At the hearing, the trial Judge read all relevant material
and invited the parties to address.

The trial Judge found that the removal of the children from
France by the husband was wrongful and without the consent of the
wife, ordered that they be returned to the mother and that she be
permitted to leave Austral1a with them for the purpose of
returning with them to France. The trial Judge refused to grant to
the husband a stay of the operation of her orders and he appealed
against that refusal.

The husband submitted that:-

(a) he was denied natural justice:-

(i) in that he was not given an opportunity to
cross-examine the wife on a number of matters
including an allegation that she was ill and
undergoing psychiatric treatment; and

(ii) in that he was denied an adjournment in
circumstances which resulted in him not being
legal represented.

(b) that the trial Judge exhibited bias against him.

(c) that the trial Judge erred in finding that there was
an interim order for custody in favour of the wife.

Held:-

(a) (i) there was no den1al of natural justice. The
primary purpose of the Convention, relevant
Legislation and Regulations is to provide a
summary procedural for the resolution of the
proceedings. Whilst there may be cases in which
it is appropriate to allow cross-examination of
deponents of affidavits, such cases would be
rare. The majority of proceedings should be
dealt with in a summary manner and
cross-examination of deponents of affidavits
would not be appropriate. The instant case
falls into the latter category and the trial
Judge properly adopted a summary form of
procedure.

(ii) no cogent reasons were advanced to demonstrate
that the trial Judge erred in refusing the
husband’s application for an adjournment.

(b) no cogent reasons were advanced to demonstrate that
the proceedings were, in any way, pre-judged or that
the trial Judge was biased in the legal sense against
the husband.

(c) although it may well be that the trial Judge was
incorrect in describing the order made on 19 October
1992 as one for interim custody of the children, it
gave her a right to determine the residence of the
children and therefore conferred upon her rights of
custody within the meaning of Article 5(a) of the
Convention.

The proposed appeal appeared not to be based on substantial
grounds and could be seen as a delaying tactic. Further, in
determining whether the trial Judge had properly exercised her
discretion in refusing the stay, it was appropriate to take into
account the summary nature of the proceedings and the purposes of
the Convention.

Appeal dismissed.

Reportable.

This is an appeal from the refusal of Moore J. to grant a
stay of the operation of orders made by her on 14 December 1992.
The thrust of those orders was that, pursuant to Article 12 of the
Convention on the Civil Aspects of International Child Abduction,
the children, Paul Richard Gazi and Isobelle Andrea Gazi, be
returned forthwith to Julia Ann Gazi and that she be permitted to
leave Australia with the said children for the purpose of
returning with them to France. The appeal relates only to her
Honour’s refusal to grant a stay of the operation of her orders
and is not an appeal from her Honour’s substantive decision. Thus,
the only question for our determination is whether her Honour
erred in the appellate sense in the exercise of her discretion in
refusing to grant the stay.

We do not have the benefit of the reasons of her Honour for
arriving at the conclusion not to grant the stay but that absence
does not of itself indicate that the discretion has been
erroneously exercised. Because of that fact, however, this Court
must examine the circumstances itself for the purposes of
determining whether those circumstances show that the discretion
was erroneously exercised. We do, however, have the reasons of her
Honour in relation to the substantive decision. As appears from
those reasons, the husband and the wife commenced living together
in France in 1979. In 1981, the husband migrated to Australia
where he was joined later that year by the wife. They married in
Australia on 8 December 1984 but returned to France in June 1989
to enable the husband to participate there in a business venture.

Whilst in Australia, the two children, the subject of the
orders, were born; Paul on 29 June 1985 and Isobelle on 17
December 1988. A third child was born on 20 January 1991 in France
and has remained in the care of the wife. However, Paul and
Isobelle travelled to Australia with the husband on 24 October
1992. Prior to that date, the wife approached the French Court in
Montpellier seeking a separation order. On 19 October 1992, an
order was made in that Court which permitted the wife to live
separately from the husband and with the children.

Within one year of the removal of the children to Australia,
the Director-General of the Department of Community Services, a
State Central Authority appointed, pursuant to Regulation 8 of the
Family Law (Child Abduction Convention) Regulations, brought
proceedings seeking the return to France of Paul and Isobelle
alleging that they were removed from France in contravention of
the Convention on the Civil Aspects of International Child
Abduction.

At the hearing of those proceedings before the learned trial
Judge, there was an issue as to whether the children’s mother
consented to or acquiesced in the children’s removal from France.
In her reasons for judgment, the trial Judge referred to the
evidence of both parties on this issue. In the ultimate, she
rejected the husband’s evidence that the wife so consented or
acquiesced as being highly improbable and, at page 5 of her
reasons, set out seven factors which, in her view, supported that
conclusion. She thus found that the removal of the children from
France by the husband on 24 October 1992 was wrongful and without
the consent of the wife.

Whilst we have not had the benefit of a copy of a Notice of
Appeal from the substantive decision of her Honour, the husband
has submitted to us that, at the hearing before her Honour, he was
denied natural justice in that he was given no opportunity to be
heard or to cross-examine and that he did not consent to being
deprived of those opportunities. He further alleges that he was
denied an adjournment in circumstances which resulted in him not
being legally represented as and from 11 December 1992. He further
submitted that the trial Judge was in error in finding that there
was an interim order for custody in favour of the wife and that
the trial Judge was biased against him in the legal sense.

It would appear from an affidavit of the husband sworn on 14
December 1992 that he was originally represented by a solicitor,
Sandra Maude, and Ms Andrea Cotter-Moroz of counsel. On or about
27 November 1992, he said that he terminated the services of both
Ms Maude and Ms Cotter-Moroz and engaged another solicitor who
instructed Mr Hodgson of counsel. The matter came on for hearing
on 10 December 1992 on which day, it would appear that the
proceedings were adjourned to enable the applicant to file
additional material. That evening, the husband alleges he received
for the first time, by facsimile transmission from his former
solicitor, an account in the sum of $9500 including counsel’s fees
as opposed to an anticipated account of approximately $1500.
As the account was not paid by the husband, on the basis of a
ruling of the New South Wales’ Bar Association Mr Hodgson informed
the husband and the Court on Friday, 11 December 1992, that he was
not able to continue to act for him because of fees outstanding to
counsel who had previously appeared for the husband. If those
assertions are correct, it may well be that the Bar Association
should re-examine the relevant rule in the light of injustices
which its application may work. The proceedings were then
adjourned to Monday, 14 December 1992 by which time the husband
had received certain advice as to how to conduct his case. He has
put to us that he desired to cross-examine the wife on a number of
matters, including an allegation that she was ill and was
undergoing Psychiatric treatment. He believed, on the basis of the
advice he received, that he would be able to cross-examine the
wife, give evidence himself and be afforded an opportunity to
address the Court. He informed us that he was not able to
cross-examine the wife, to give evidence himself or address the
Court and submitted that as he was not represented, the trial
Judge should have assisted him, at least in relation to procedural
matters. In addition, he submitted that the application should
have been further adjourned to enable him to obtain advice and
legal representation.

It is apparent from a reading of the transcript of the
proceedings on 14 December 1992, that the trial Judge first read
all the relevant material. That material would have included the
affidavits filed, including those of the husband and that handed
up by him in Court on that day. She then invited the parties to
address her, an invitation which was accepted by the husband who
completed his address by submitting that the application should be
dismissed.

The primary purpose of the Convention, the relevant
Legislation and Regulations is to provide a summary procedure for
the resolution of the proceedings and, where appropriate, a speedy
return to the country of their habitual residence of children who
are wrongly removed or retained in another country in breach of
rights of custody or access. See Convention, Articles 7 and 11,
Family Law (Child Abduction Convention) Regulations, reg.19(1).
Accordingly, whilst there may be cases in which it is appropriate
to allow cross-examination of deponents of affidavits, such cases
would be rare. WMH FN-2 The majority of proceedings for the
return of children, pursuant to the Convention, should be dealt
with in a summary manner and cross-examination of deponents of
affidavits would not be appropriate. See: Re E (A Minor)
(Abduction) (1989) 1 FLR 135 at 142 per Balcombe LJ; P v P
(Minors) (Child Abduction) (1992) 1 FLR 155. The instant case
falls into the latter category and the trial Judge properly
adopted a summary form of procedure. In so doing, she did not deny
the husband a proper hearing of his claim for custody of the
children or an opportunity to cross-examine the wife on matters
referred to by him. That cross-examination can take place at a
hearing of his claim for custody of the children in the
appropriate Court after the resolution of proceedings brought
pursuant to the Convention. In this case, the appropriate Court is
clearly the French Court.

No cogent reasons were advanced to satisfy us that these
proceedings were, in any way, pre-judged as alleged by the
husband, that the trial Judge was biased in the legal sense
against him or that she erred in refusing his application for a
further adjournment.

We have had the opportunity of perusing the order of the
French Court which clearly permitted the wife to live separately
from the husband with the children. That order was made on 19
October 1992 and although it may well be that her Honour was
incorrect in describing the order as one for interim custody of
the children, it gives her a right to determine the residence of
the children and therefore confers upon the wife rights of custody
within the meaning of Article 5(a) of the Convention.

It is not disputed that the wife approached the French Court
in Montpellier in October 1992 to seek a separation order. In
addition, it is clear that the wife had some fears that the
husband would remove the children from France without her prior
knowledge as evidenced by her correspondence prior to 24 October
1992 with the Law Society of New South Wales. That objective
evidence, together with the other objective evidence referred to
at page 5 of the trial Judge’s reasons, clearly supports her
rejection of the husband’s evidence relating to the issue of the
wife’s consent to the children accompanying him to Australia as
being highly improbable and her finding that the removal of the
children from France by the husband was wrongful and without the
consent of the wife.

Her Honour further found that irrespective of the relevant
Regulations for the reasons set out by her at page 6 of her
reasons, that the appropriate forum for any dispute relating to
the custody of the children was France. That conclusion was
clearly open to her Honour having regard to the residence of the
family in France since 1989 and the commencement of proceedings in
that country. Even if the defence of acquiescence or consent had
been made out, the Court still has a judicial discretion to order
the return of the children to the country of residence as the more
appropriate forum: In re A. (Minors) (Abduction: Custody Rights)
(No. 2) (1992) 3 WLR 538.

In determining whether the trial Judge erroneously exercised
her discretion by refusing to grant the stay, it is appropriate to
consider the husband’s submissions to us on the basis that they
outline the grounds which he would incorporate into a Notice of
Appeal. On that basis, it would appear that the proposed appeal is
not, however, based on substantial grounds and the appeal itself
could be seen as a delaying tactic. Further, it is appropriate to
take into account the summary nature of the proceedings and the
purposes of the Convention. Accordingly, we are of the view that
the circumstances demonstrate that the discretion was properly
exercised and that the trial Judge did not err in refusing to
grant the stay.

Having regard to the orders made by us on 15 December 1992,
we now make the following orders:-

1. That the appeal be dismissed.

2. That orders numbered 2 and 3 made on 15 December 1992
be discharged.

3. That the Central Authority forthwith advise the
Australian Federal Police of the discharge of the
orders referred to in Order 2 hereof.

Note: All footnotes are by William M. Hilton, CFLS and are not
part of the original decision.
——————–
1. This decision was graciously contributed by Mr. Justice Peter
E. Nygh, Family Court of Australia, Sydney.

2. These occasions would probably be when there were colorable
allegations made under Article 13(b) that there would be
substantial harm to the children. This ruling is in keeping
with the tenor of The Convention. See also 42 U.S.C.
11603(e)(2)(A) where the party proffering such evidence must
do so by a “clear and convincing” standard. See also the
Uniform Child Custody Jurisdiction Act, Section 3(a)(3), the
“Emergency” jurisdiction part and cases cited thereto.