AUSTRALIA – GSPONDER – 1988

AUSTRALIA – GSPONDER – 1988 (1988) (Return ordered) GSPONER v JOHNSTONE, Child abducted to Australia by his mother. Lower court orders the child returned to Switzerland. Mother appeals. Appeal dismissed.

GSPONER v JOHNSTONE (1988)12 Fam LR 755

FAMILY COURT OF AUSTRALIA

Fogarty, Frederico and Joske JJ

8, 23 December 1988 – Melbourne

Child abduction – Child abducted to Australia from Switzerland –
Appeal against order for his return – Convention on the Civil
Aspect of International Child Abduction – Family Law (Child
Abduction Convention) Regulations reg 16.

On 25 November 1988 the trial judge ordered the return to
Switzerland of a nine-year-old boy who had been abducted to
Australia by his mother. The order was made pursuant to the
Family Law (Child Abduction Convention) Regulations which enable
Australia to perform its obligations under the Convention on the
Civil Aspects of International Child Abduction. The mother
appealed, primarily on the basis that the trial judge had
misinterpreted reg 16(3)(b) which provides that a court can
refuse to order the return of a child if satisfied that, “(b)
there is a grave risk that the child’s return to the applicant
would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation;”.

Held, per curiam, dismissing the appeal:

(i) Under reg 16 of the Family Law (Child Abduction Convention)
Regulations, the court was bound to order the return of the child
unless the respondent to the application established at least one
of the matters set out in sub-reg (3). If one of those matters
were established, the court had a discretion to refuse to order
the return of the child but was not bound to do so.

Re A (a minor) [1988] 1 FLR (UK) 365 at 369, followed.

(ii) None of the matters set out in reg 16(3)(b) had been
established by the mother.

(iii) The three categories set out in reg 16(3)(b) are to be read
separately although there must be a “grave risk” of one or more
of such events occurring. The consequence of the words “or
otherwise” in para (b) is to link the quality which each of the
first two categories must have with the words “‘an intolerable
situation” used in the third category, that is, there must not
only be a grave risk of physical or psychological harm but such
harm must be of a substantial kind.

Re A (a minor), supra, followed.

(iv) The “grave risk” which reg 16(3)(b) refers to is the risk
arising from “the child’s return to the applicant”. In this case
the applicant was the relevant “Central Authority” in
Switzerland (under reg 13) and not, as had been assumed in the
trial, the father. Orders under the Convention are in reality
directed to the return of the child to the other country. It
follows that reg 16(3)(b) is confined to the grave risk of harm
to the child arising from his or her return to a country with
which Australia has entered into the Convention.

Re A (a minor), supra; Re Evans (Court of Appeal (UK), 20 July
1988, unreported), followed.

(v) The large majority of cases under the Convention are intended
to be heard expeditiously by a summary form of procedure.

Re A (a minor), supra; Re Evans, supra, followed

Appeal

This was an appeal by the mother against an order, made pursuant
to the Family Law (Child Abduction Convention) Regulations, that
her son be returned to Switzerland.

Mr. Guest QC and Mr. Wilson for the appellant (mother).

Ms. Symon for the respondent (Director-General).

Cur. adv. vult. 1

Fogarty, Frederico and Joske JJ. On 25 November 1988 Graham J,
pursuant to the provisions of The Hague Convention on the Civil
Aspects of International Child Abduction and the Regulations made
thereunder ordered the return to Switzerland of the child, X. The
appellant, Carmel Faye Gsponer, who is the mother of the child
and the wife of Pius Gsponer, appealed against that order. Graham
J declined to grant a stay. Consequently the appeal was filed for
hearing as a matter of expedition, and was heard on 8 December
whilst the child was still within Australia. At the conclusion of
argument that day we announced our decision, namely the dismissal
of the appeal, and indicated that we would publish our reasons
for judgment expeditiously. The following are our reasons for
judgment.

It is convenient to set out in brief form the basal facts which
have given rise to these proceedings. Pius Gsponer (the husband)
was born in Switzerland in 1956 and is aged 32 and is a Swiss
national. Carmel Fay Gsponer (the wife) was born in Australia in
1956 and is also aged 32. She has dual citizenship, namely
Australian citizenship as a consequence of her birth in this
country and Swiss citizenship arising from her marriage to her
husband. The parties married in the State of Victoria, Australia
on 17 February 1979. Shortly after their marriage they left
Australia and traveled to Switzerland where they both lived until
October 1988. The child who is the subject of these proceedings,
X, was born in Switzerland on 30 December 1979 and until the
events in October 1988 giving rise to these proceedings, has
always lived in Switzerland, including attendance at school in
that country in more recent years. His present age is almost nine
and he has citizenship of both Australia and Switzerland.

_______________________________
1 Curia advisari vult: The court will advise; the court will consider. A
phrase frequently found in the reports signifying the resolution of the
court to suspend judgment in a cause, after the argument, until they have
deliberated upon the question, as where there is a new or difficult point
involved.
——————————
Between 3 and 9 October 1988, whilst the husband was absent from
the home as a consequence of his employment, the wife left
Switzerland and traveled to Australia, taking X with her. Since
that time the wife and child have lived in Australia with the
wife’s parents, the wife making it clear both to the husband and
in material filed in these proceedings that she did not desire or
intend to return with the child to Switzerland.

On 4 November 1988 the Federal Office of Justice, the relevant
authority in Switzerland under the Hague Convention, made a
request to the Attorney-General of the Commonwealth of Australia
under that Convention. That request was then transmitted to the
applicant in these proceedings, Peter Johnstone,
Director-General, Department of Community Services, Victoria who,
pursuant to regs 8 and 9 of the Family Law (Child Abduction
Convention) Regulations of the Commonwealth of Australia is the
authority appointed under those regulations to initiate
proceedings under the Convention within the State of Victoria.

On 16 November 1988 the Director-General issued an application
under the regulations returnable in the Melbourne Registry of the
Family Court on 22 November 1988.

in the intervening period the wife was served with the
application and both the Director-General and the wife were
represented by counsel when the matter came on for hearing before
Graham J on 22 November. The husband, whose interests were also
represented by counsel appearing for the Director-General, was
not in Australia but remained in Switzerland. The material before
the trial judge in support of the application was the application
itself, and that had annexed to it a substantial body of material
the admissibility of which was covered by the regulations
hereafter referred to. The wife filed an affidavit in opposition
to the application together with affidavits of two other
deponents. Neither the wife nor those deponents was
cross-examined.

As it appeared that an issue which may arise was the wishes or
“views” of the child about his return to Switzerland, the hearing
was adjourned to 25 November to enable a counsellor to interview
the child and give evidence. That evidence was given on 25
November. For reasons which appear hereafter it is unnecessary to
consider the detail of that evidence. After hearing submissions
from counsel Graham J delivered judgment at the conclusion of
which he made the following orders:

“(1) That the child of the marriage, X, born on 30 December 1979
be forthwith returned to the custody of the husband in
Switzerland.

“(2) That whilst remaining in the Commonwealth of Australia the
said child remain in the custody of the wife at Morrisons Road,
RMB 1128 Nhill in the State of Victoria under the control of the
Director-General of the Department of Community Welfare Services
Victoria.

“(3) That all current passports relating to the wife and the said
child remain in the custody of the Registrar of the Melbourne
Registry of the Family Court of Australia subject to the
direction of the said Director-General.

“(4) That the wife be permitted to accompany the said child upon
his return to Switzerland but otherwise , be and is hereby
restrained from removing the said child from the Commonwealth of
Australia and it is requested that the Marshal of the said court
at Melbourne and all officer of the Australian Federal Police and
the Department of Immigration and Ethnic Affairs give effect to
this order.

“(5) That the wife’s consent to the execution of and necessary
travel documents for the said child be dispensed with.

It is directed

“(6) That a sealed copy of this order be served upon the
Australian Federal Police and the Department of Immigration and
Ethnic Affairs.

“(7) That the wife pay any costs of locating the said child and
any traveling expenses incurred by the Director-General
Department of Community Services and/or the husband in respect of
the return to Switzerland of the said child.”

In the circumstances which we have previously described the
wife’s appeal against those orders was heard by us on 8 December
1988.

Before turning to the evidence before the trial judge and the
submissions made to us upon the hearing of this appeal it is
desirable to set out the relevant provisions of the Convention
and the Family Law Regulations made pursuant to that Convention.

Although these proceedings are governed entirely by the
Convention, we preface that exercise by a brief reference to some
more general matters.

In more recent times there has been an increasing incidence of
cases where a parent removes a child from one country or
jurisdiction to another in order to gain an advantage over the
parent in respect of the future custody of that child. in many
cases this may create insuperable practical anD/or legal barriers
to a proper adjudication concerning the future welfare of that
child. Even without legislative intervention, courts in both this
country and overseas have adopted an increasingly consistent
response to such cases and have generally exhibited what might
broadly be described as a strong preference for the issue to be
determined by the forum from which the child has been removed. It
is unnecessary for the purposes of this judgment to refer to the
increasingly long line of such cases to this effect, but in
England reference may be made to McKee v McKee [1951] AC 352, and
to Re R (minors) [1981] 2 FLR (UK) 416, and in Australia to one
of the more recent cases, In re Marriage of Schwartz (1985) 10
Fam L.R. 235; [1985] FLC 91-618, and the cases therein referred
to.

In Australia some legislative support for this approach is
contained in s 68 of the Family Law Act. This makes provision for
the registration and enforcement in certain circumstances in this
country of overseas custody orders. That provision however is
confined to orders of a court of a “prescribed overseas
jurisdiction” and only New Zealand and Papua New Guinea are so
prescribed: see ss 4 and 60 of the Family Law Act.

The Convention on the Civil Aspects of International Child
Abduction was signed at the Hague on 25 October 1980. It
represents a more determined approach to this issue by the
signatory states. Australia acceded to the operation of that
Convention by the promulgation of the Family Law (Child Abduction
Convention) Regulations which became law on 1 January 1987. Those
regulations were promulgated pursuant to s 111b of the Family Law
Act, a provision introduced into that legislation as part of the
1983 amendments. At all relevant times Switzerland is and has
been a Convention country, as are a number of other countries.

The preamble to that Convention and the Articles contained in Ch
I make clear the scope and purpose of the obligations which the
contracting states have undertaken. They are in the following
terms:

“CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

The States signatory to the present Convention, Firmly convinced
that the interests of children are of paramount importance in
matters relating to their custody,

Desiring to protect children internationally from the harmful
effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their
habitual residence, as well as to secure protection for rights of
access,

Have resolved to conclude a Convention to this effect, and have
agreed upon the following provisions –

CHAPTER 1 – SCOPE OF THE CONVENTION

“Article I

“The objects of the present Convention are –

(a) to secure the prompt return of children wrongfully removed to
or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law
of one Contracting State are effectively respected in the other
Contracting States.

Article 2

Contracting States shall take all appropriate measures to secure
within their territories the implementation of the objects of the
Convention. For this purpose they shall use the most expeditious
procedures available.

Article 3

The removal or the retention of a child is to be considered
wrongful where–

(a) it is in breach of rights of custody attributed to a person,
an institution or any other body, either jointly or alone, under
the law of the State in which the child was habitually resident
immediately before the removal or retention; and

(b) at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have been
so exercised but for the removal or retention.

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

Article 4

The Convention shall apply to any child who was habitually
resident in a Contracting State immediately before any breach of
custody or access rights. The Convention shall cease to apply
when the child attains the age of 16 years.

Article 5

For the purposes of this Convention–

(a) ‘rights of custody’ shall include rights relating to the
care of the person of the child and, in particular, the right to
determine the child’s place of residence;

(b) ‘rights of access’ shall include the right to take a child
for a limited period of time to a place other than the child’s
habitual residence.

Chapter II makes provision for a contracting state to designate a
central authority to discharge the duties imposed by the
Convention. Pursuant to the regulations the officer of the
Australian Public Service from time to time holding the office of
a Secretary to the Attorney-General’s Department is nominated as
the Commonwealth Central Authority, and particular persons are
appointed under those regulations as the central authority for
the specified State or Territory. In Victoria Peter Johnstone,
Director-General of the Department of Community Services
Victoria, is the person currently so nominated and has, pursuant
to that nomination, brought these proceedings.

Chapter III of the Convention under the heading RETURN OF
CHILDREN provides detailed provisions relating to that subject
matter. Although length, it is desirable to set out those
Articles.

CHAPTER III–RETURN OF CHILDREN

Article 8

Any person, institution or other body claiming that a child has
been removed or retained in breach of custody rights may apply
either to the Central Authority of the child’s habitual residence
or to the Central Authority of any other Contracting State for
assistance in securing the return of the child.

The application shall contain–

(a) information concerning the identity of the applicant, of the
child and of the person alleged to have removed or retained the
child;

(b) where available, the date of birth of the child;

(c) the grounds on which the applicant’s claim for return of the
child is based;

(d) all available information relating to the whereabouts of the
child and the identity of the person with whom the child is
presumed to be. The application may be accompanied or
supplemented by –

(e) an authenticated copy of any relevant decision or agreement;

(f) a certificate or an affidavit emanating from a Central
Authority, or other competent authority of the State of the
child’s habitual residence, or from a qualified person,
concerning the relevant law of that State;

(g) any other relevant document.

Article 9

If the Central Authority which receives an application referred
to in Article 8 has reason to believe that the child is in
another Contracting State, it shall directly and without delay
transmit the application to the Central Authority of that
Contracting State and inform the requesting Central Authority, or
the applicant, as the case may be.

Article 10

The Central Authority of the State where the child is shall take
or cause to be taken all appropriate measures in order to obtain
the voluntary return of the child.

Article 11

The judicial or administrative authorities of Contracting States
shall act expeditiously in proceedings for the return of
children.

If the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement
of the proceedings, the applicant or the Central Authority of the
requested State, on its own initiative or if asked by the
Central Authority of the requesting State, shall have the right
to request a statement of the reasons for the delay. If a reply
is received by the Central Authority of the requested State, that
Authority shall transmit the reply to the Central Authority of
the requesting State, or to the applicant, as the case may be.

Article 12

Where a child has been wrongfully removed or retained in terms of
Article 3 and, at the date of the commencement of the proceedings
before the judicial or administrative authority of the
Contracting State where the child is, a period of less than one
year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the
child forthwith.

The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the
period of one year referred to in the preceding paragraph, shall
also order the return of the child, unless it is demonstrated
that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested
State has reason to believe that the child has been taken to
another State, it may stay the proceedings or dismiss the
application for the return of the child.

Article 13

Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State is
not bound to order the return of the child if the person,
institution or other body which opposes its return establishes
that–

(a) the person, institution or other body having the care of the
person of the child was not actually exercising the custody
rights at the time of removal or retention, or had consented to
or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise place the
child in an intolerable situation.

The judicial or administrative authority may also refuse to order
the return of the child if it finds that the child objects to
being returned and has attained an age and degree of maturity at
which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the
judicial and administrative authorities shall take into account
the information relating to the social background of the child
provided by the Central Authority or other competent authority of
the child’s habitual residence.

Article 14

In ascertaining whether there has been a wrongful removal or
retention within the meaning of Article 3, the judicial or
administrative authorities of the requested State may take notice
directly of the law of, and of judicial or administrative
decisions, formally recognized or not in the State of the
habitual residence of the child, without recourse to the specific
procedures for the proof of that law or for the recognition of
foreign decisions which would otherwise be applicable.

Article 15

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

Article 16

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

Article 17

The sole fact that a decision relating to custody has been given
in or is entitled to recognition in the requested State shall not
be a ground for refusing to return a child under this Convention,
but the judicial or administrative authorities of the requested
State may take account of the reasons for that decision in
applying this Convention.

Article 18

The provisions of this Chapter do not limit the power of a
judicial or administrative authority to order the return of the
child at any time.

Article 19

A decision under this Convention concerning the return of the
child shall not be taken to be a determination on the merits of
any custody issue.

Article 20

The return of the child under the provisions of Article 12 may be
refused if this would not be permitted by the fundamental
principles of the requested State relating to the protection of
human rights and fundamental freedoms.

Chapter IV deals with GENERAL PROVISIONS, and Chapter VI with
FINAL CLAUSES. It is unnecessary to refer to the Articles
contained under those chapters, except Art 29 which is in the
following terms:

Article 29

“This Convention shall not preclude any person, institution or
body who claims that there has been a breach of custody or access
rights within the meaning of Article 3 or 21 from applying
directly to the judicial or administrative authorities of a
Contracting State, whether or not under the provisions of this
Convention.”

The Family Law (Child Abduction Convention) Regulations contain
detailed provisions relating to proceedings under the Convention
and other matters. It is unnecessary for purposes of this
judgment to set those regulations out in full. It is sufficient
to refer to the following:

Regulation 2 is the definition or interpretative provision
and it refers in particular to the following: “`Applicant’ means
a person who has made an application referred to in Regulations
11, 13 or 24, as the case requires.”

In this case that applicant (under reg 13) was the Federal
Office of Justice, being the relevant central authority in
Switzerland. in the orders which were made on 25 November the
applicant was treated as being the husband and order (1) is
expressed in those terms. That was not suggested as having any
significance for the purposes of this appeal but it does have
relevance to some more general issues to which we will refer
hereafter.

“‘Removal’ in relation to a child, means the wrongful
removal or retention of a child within the meaning of the
Convention.” (As to which see Art 3.)

“‘Rights of custody’ has the same meaning as in the
Convention, and includes rights arising by the operation of the
law or by reason of a judicial or administrative decision or by
an agreement having legal effect under a law enforced in a
Convention country.” (As to which see also Art 3.)

We pause to emphasise that the “right of custody” does not
necessarily involve the existence of a positive custody order in
favour of the relevant person. Indeed the material before the
trial judge stated the position under Swiss law in relation to
this matter as follows: “Under Swiss law, as well as under
Australian law, married parents exercise parental power jointly
(Art 29 para 1 – Swiss Civil Code; Pt VII of the Family Law Act
1975 s 4(2)). Therefore neither of the parents is entitled to
exercise the right of custody alone. If one of the parents
removes the child surreptitiously from the care and affection of
the other one, the parent acting in such a manner unduly claims
an exclusive right of custody. Thus, according to Art 3 of The
Hague Convention, he commits a wrongful abduction.”

No doubt the reference in that statement to “the Family
Law Act 1975 s 4(2)” would be understood now to be a reference to
s 63F(1) of the Family Law Act which provides that, subject to
any order of a court, “each of the parents of a child who has not
attained 18 years of age is a guardian of the child, and the
parents have the joint custody of the child.”

The regulations then make detailed provision about the
appointment of appropriate authorities to carry out
responsibilities under the regulations and other matters,
including procedures where a child is abducted from Australia.

Regulation 13 deals with the present situation, namely
where the Commonwealth Central Authority receives an application
in respect of a child “removed from a Convention country to
Australia.” The regulation provides that where the authority is
satisfied that it is an application to which the Convention
applies, “the Commonwealth Central Authority shall take action
under the Convention to secure the return of the child to the
applicant. ”

Regulation 14 is the equivalent of Art 29 and preserves
the right of any person to apply directly to a court rather than
under the Convention. That has no relevance in this proceeding.

Regulation 15 describes the orders which the central
authority may apply to a court for and, at least in general
terms, the orders which the court may make. That regulation is in
the following terms:

“(1) The responsible Central Authority may, in relation to
a child removed to Australia, apply to a Court having
jurisdiction under the Act for –

(a) an order for the issue of a warrant for the
apprehension or detention of the child;

(b) an order directing that the child not be removed from
a place specified in the order; :

(c) an order requiring such arrangements to be made as are
necessary for the purpose of placing the child with an
appropriate person, institution or other body in order to secure
the welfare of the child pending the determination of an
application under regulation 13; or

(d) an order for the return of the child to the applicant.

“(2) A court may, in respect of an application made under
sub-regulation (1), make an order of the kind referred to in that
sub-regulation and such other orders as the court thinks fit.

“(3) Where under sub-regulation (2) a court makes an order
in relation to the removal of a child from a place specified in
the order, the court may impose such conditions on the removal of
the child from that place as the court thinks fit.

“(4) An application under sub-regulation (1) shall be in
accordance with Form 2 in Schedule 3.”

Regulation 16 is the critical regulation for the purposes
of this appeal and is the counterpart of Art 13. We will set out
that regulation in full at this stage and then return to its
interpretation and its impact in this case after we have
completed our reference to the other regulations which have
relevance.

Regulation 16 is as follows:
“(1) Subject to sub-regulation (3), a court shall order the
return of a child pursuant to an application made under
sub-regulation 15(1) if the day on which that application was
filed is a date less than one year after the date of the removal
of the child to Australia.

(2) Subject to sub-regulation (3), a court shall order the
return of a child pursuant to an application for an order of the
kind referred to in paragraph 15(1)(d) if the date on which that
application was filed is a date that is at least one year after
the date of the removal of the child, unless it is satisfied that
the child is settled in its new environment.

“(3) A court may refuse to make an order under sub-regulation (1)
or (2) if it is satisfied that –

(a) the person, institution or other body having the care
of the child in the convention country from which the child was
removed was not exercising rights of custody at the time of the
removal of the child and those rights would not have been
exercised if the child had not been removed, or had consented to
or acquiesced in the child’s removal;

(b) there is a grave risk that the child’s return to the
applicant would expose the child to physical or psychological harm
or otherwise place the child in an intolerable situation;

(c) the child objects to being returned and has attained an
age and degree of maturity at which it is appropriate to take
account of the child’s views; 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.

“(4) For the purposes of sub-regulation (3), the court may take
into account such information relating to the social background of
the child as may be provided by the Central Authority of the
convention country from which the child was removed.

“(5) A court may stay or dismiss an application for an order of
the kind referred to in paragraph 15(l)(d) in relation to a child
if it is satisfied that the child is no longer in Australia.”

Regulation 18 is obviously designed to meet the possible
situation that the “abducting” parent has already obtained an
order in the country to which he or she has resorted with the
child. The regulation provides:

“On the hearing of an application under sub-regulation 15(1) in
relation to a child, a court shall not refuse to make an order
under sub-regulation 15(2) for the return of a child to the
applicant by reason only that in relation to that child there is
in force or enforceable in Australia an order in relation to the
custody of the child, but may take into account the reasons for
the making of that order.”

Regulation 19 emphasizes the expedition with which applications
under the Convention and regulations are to be undertaken. It.
provides that the application shall be fixed for hearing “not
later than seven days after the date of the filing of the
application and it also provides for service of the application on
the other person.

Regulation 20 casts upon the central authority the responsibility,
where an order has been made under reg 16, to carry out the
arrangements for the return of the child to the applicant, and,
again to emphasise the expedition which the Convention calls for,
it provides by sub-reg (2) that: “If, within 7 days after the
making of an order under regulation 16, the responsible Central
Authority has not been notified that the order has been stayed in
accordance with sub-rule 1(10) of Order 32 of the Rules of the
Court, the child shall be returned to the applicant.” (See now 0
32 r 4.)

Regulation 23 contains important evidentiary provisions and reg 24
relates to access cases.

Finally, reg 25 provides: “Nothing in these Regulations shall be
taken to prevent a court of competent jurisdiction, at any time,
from making an order for the return of a child to an applicant
otherwise than under these Regulations.”

We turn back then to the interpretation and the application of reg
16, which were critical issues on this appeal. Mr Guest QC, who
with Mr Wilson, appeared for the appellant confined his argument
to those two aspects and did not suggest that there were any other
issues arising out of the Convention or the regulations upon which
he could rely.

Sub-regulation (1) of reg 16 provides that where an appropriate
application is made under the Convention the court “shall” order
the return of the child. That obligation is clear and unambiguous
and is subject only to the provisions contained in sub-reg (3).

The court is bound to order the return of the child unless the
respondent to the application establishes one or more of the
matters set out in sub-reg (3). If one or more of those matters
are established, it by no means follows that the court will refuse
the order; the court has a discretion to do so. That this is so is
clear from the opening words to sub-reg (3).

In Re A (a minor) [1988] 1 FLR 365 at 369 Nourse LJ, speaking on
behalf of the Court of Appeal in relation to the equivalent
English regulations said this: “It follows that the English court
is bound to order the return of G forthwith under Art 12(1),
unless the mother establishes that the case falls within Art 13,
in which event the court has a discretion as to whether the return
should be ordered or not.”

At 368 Nourse LJ referred to the general purpose of the Convention
in the following terms:

“These and other provisions of the Convention demonstrate that its
primary purpose is to provide for the summary return to the
country of their habitual residence of children who are wrongfully
removed to or retained in another country in breach of subsisting
rights of custody or access. Except in certain specified
circumstances, the judicial and administrative authorities in a
country to or in which the child is wrongfully removed or retained
cannot refuse to order the return of the child, whether on grounds
of choice of forum or on a consideration of what is in the best
interests of the child or otherwise.”

See also Brown v Director-General (Family Court of Australia
(Nicholson CJ), 6 September l988, unreported) to the like effect.

This view received strong reinforcement in the observations of
Latey J of the High Court of Justice in the case of Re Corie (a
minor) (14 October 1988, unreported), namely that: “. . . I remind
myself that under the Act and Convention the welfare of the child
is not the primary consideration or indeed a consideration at all,
save to the extent that it may properly influence a decision under
Art 13.”

We should perhaps add, in case this citation be misunderstood,
that it appears to us that Latey J was led into error by the
evidence placed before him in that case as to the procedures for
the hearing of custody cases in this country and as to the proper
meaning and interpretation of s 63E of the Family Law Act. In
particular he was not informed as to the rights of joint
guardians, the provisions of ss 63E(4) and (5) of the Act, or of
the decision of our Full Court In the Marriage of R (1984) 9 Fam
LR 1078; [1984] 91-571. Otherwise we do not think it appropriate
for the purposes of this appeal to make any further comment about
the correctness of the actual decision in Re Corrie. We note that
on 14 December 1988 an appeal from that decision was allowed upon
the appellant father giving certain undertakings. The Court of
Appeal found it unnecessary to consider further expert evidence on
Australian law which was proffered on the appeal. Again, we think
it unnecessary to make any comment about the approach of the Court
of Appeal to rights of guardianship and custody in this country or
to the facts of that case.

So it is clear that the onus rests upon the respondent to
establish one or more of the matters set out in sub-reg (3).

In Re Evans, (Court of Appeal (UK), 20 July 1988, unreported)
Lincoln J said this: “In my judgment there is a very heavy burden
indeed upon a person alleged to have abducted a child in bringing
himself or herself within the provisions of Art 13 and the court
should hesitate very long before it grants what is in effect an
exemption from the urgency which is a characteristic of this
Convention and the Act incorporating it.” See also Brown v
Director-General, supra.

At the hearing before Graham J both paras (b) and (c) of reg 16(3)
were relied upon, although both were rejected by the trial judge.
Before us Mr Guest did not seek to rely upon para (c) (“the
child’s views”) and, having regard to the evidence given by the
court counsellor on 25 November, we consider that that was a
concession properly made.

As Mr Guest’s major argument was that Graham J had misinterpreted
sub para (b), it is desirable to re-state it: “(b) there is a
grave risk that the child’s return to the applicant would expose
the child to physical or psychological harm or otherwise place the
child in an intolerable situation.”

Mr Guest submitted that the proper interpretation of that
paragraph was that it was necessary for the respondent to
establish a “grave risk that the child’s return to the applicant”
would expose the child to: (i) physical harm; or (ii)
psychological harm; or (iii) otherwise place the child in an
intolerable situation.

He submitted that the three categories were to be read
disjunctively and in particular the physical or psychological harm
referred to in (i) or (ii) above was in no way qualified by the
“otherwise . . . in an intolerable situation”, although he
conceded that it was necessary to establish a “grave risk” of any
one of those events.

Ms Symon, who appeared for the respondent to this appeal,
submitted that the proper interpretation of the provision was that
there was in fact only one category, not three, namely the grave
risk of an “intolerable situation” and that the reference to
physical harm and psychological harm were but examples or
instances of that.

In his judgment the trial judge dealt with this issue in the
following terms (appeal book, pp 118-119):

“I will first of all deal with [reg] 16(3)(b). In dealing with
this sub-section, not only must there be a grave risk that if the
child is returned to the husband it would expose the child to
physical or psychological harm, the sub-section goes on to say
that it would otherwise place the child in an intolerable
situation.

“It would seem to me that the exposure to harm must be of the
gravity of an intolerable situation. I do not find that in this
case that that sub-section has been made out. There are certainly
some assertions in the untested affidavit of the wife, however,
they are of such a general nature, apart from one specific
instance, that they do not lead me to the view as a matter of fact
that there is a grave risk that this child will be exposed to
physical or psychological harm or otherwise placed in an
intolerable situation if returned to Switzerland. ”

In our view the three categories are to be read separately and to
that extent we agree with the submissions of Mr Guest. However, it
needs to be emphasised that there must be a “grave risk” of the
occurrence of one or more of such events. Further, it is
impossible to ignore the existence of the words “or otherwise”.
The consequence of those words is to link the quality which each
of the first two categories must have to the emphatic words which
describe the third category (“an intolerable situation”). That is,
it is not the grave risk of any physical or psychological harm
which would satisfy the first two aspects of this sub-paragraph.
The physical or psychological harm in question must be of a
substantial or weighty kind.

This accords with the views of the Court of Appeal in Re A, supra,
where at 372, Nourse LJ said this:

“I agree with Mr Singer, who appears for the father, that not only
must the risk be a weighty one, but it must be one of substantial,
and not trivial, psychological harm. That, as it seems to me is
the effect of the words ‘or otherwise place the child in an
intolerable situation. It is unnecessary to speculate whether the
ejusdem generis 2 rule ought to be applied to the wording of an
_______________________________
2 Ejusdem generis: Of the same kind, class or nature. In the construction
of laws, wills, and other instruments, the “ejusdem generis rule” is, that
where general words follow an enumeration of persons or things, by words of
a particular and specific meaning, such general words are not to be
construed in their widest extent, but are to be held as applying only to
persons or things of the same general kind or class as those specifically
mentioned.
——————————-
international convention having the force of law in this country.
Assuming that it ought not, I nevertheless think that the force of
those strong words cannot be ignored in deciding the degree of
psychological harm which is in view.”

We should add that there is no significance in the circumstance
that in this passage his Lordship referred only to psychological
harm; in that case the issue related to that as distinct from
suggested physical harm.

An initial reading of the passage in the judgment of the trial
judge quoted above may suggest that his Honour overstated the test
to be applied when he said that “it would seem to me that the
exposure to harm must be of the gravity of an intolerable
situation”. In isolation we think that that statement does not
correctly interpret the sub-paragraph. However, almost immediately
after that, when the trial judge turned to the facts, he said:
“They (the affidavits on behalf of the wife) do not lead me to the
view as a matter of fact that there is a grave risk that this
child will be exposed to physical or psychological harm or
otherwise placed in an intolerable situation if returned to
Switzerland.”

In that passage we think his Honour correctly applied the law to
the facts before him.

In reality however it is unnecessary for us to consider the
refinements of that view in any detail because we consider that an
application of the correct interpretation of sub-para (b) would
inevitably have led to the conclusion that the wife had satisfied
the onus which rests upon her under that provision.

We think it unnecessary to refer to the evidence on behalf of the
wife in detail. Mr Guest emphasised that the wife and her
witnesses were not the subject of cross-examination or of any
direct evidential challenge. In substance the evidence of the wife
was that throughout a substantial period of the marriage she had
been subjected to significant episodes of violence by her husband
and that the child had also been assaulted or mistreated by the
husband on a number of occasions. Largely that material was very
general and non-specific, although some particular events relating
to the child in more recent times were referred to by the wife in
her affidavit. The trial judge had the evidence before him
together with the submissions of counsel. He rejected the wife’s
case on this aspect and we think that he was correct in doing so.
We say that notwithstanding that it is possible that his Honour
may have had in mind a stricter test than was appropriate.

There are two other factors which we feel make a detailed
examination of this factual material unnecessary, both of which
are significant in this case and generally.

The first is that the grave risk which reg 16(3)(b) refers to is
the risk arising from “the child’s return to the applicant”. The
proceeding before the trial judge proceeded upon the assumption
that “the applicant” in this case was the father and indeed that
is reproduced in order (1), where his Honour ordered the return of
the child to “the custody of the husband in Switzerland”.
Regulation 2, to which we have referred, makes it clear that
“applicant” means the person who has made the relevant application
under reg 13. In this case that was the Federal Office of Justice,
Switzerland, or its appropriate officer. Mr Guest, when he
commenced his argument, briefly acknowledged that this was so,
although he submitted that it had no relevance to the submissions
which he was making. .

Nevertheless it is an important matter both in this case and
generally. Orders under the Convention are in reality directed to
the return of the child to the other country, and this would be so
as a matter of practical reality even if the “applicant” under reg
13 is the other parent. This is made clear from the preamble to
the Convention which speaks of the “prompt return (of the child)
to the State of their habitual residence.” Once the child has been
so returned, no doubt the appropriate court in that country will
make whatever orders are then thought to be suitable for the
future custody and general welfare of that child, including any
interim orders.

So understood, 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. That is partly why in Re A, supra, Nourse LJ at
372 said that the trial judge was bound to consider “the practical
consequences of his making an order to that effect.” His Lordship
re-emphasised that at 373 where he said:

“Two further points have been debated in relation to Art 13(e).
First, Mr Johnson has submitted that the `return’ contemplated in
that and the other provisions of the Convention, as it applies to
this case, is a return to the custody of the father. On a
consideration of the Convention as a whole, in particular of the
preamble, I think it clear that what is contemplated is a return
to the country of the child’s habitual residence . . . in the
present case it is enough to say that the judge was entitled to
proceed, as he did, on the footing that an order for G’s return
would result in the mother returning with him and also that there
would be a further application to the British Columbian court as
soon as practicable thereafter.”

Similarly in Re Evans, supra, Balcombe LJ quoted with approval the
following passage from the judgment of the judge at first
instance:

“I am not at all satisfied, on the material I have seen, that it
could possibly be said that there is a grave risk that the child
will be placed in an intolerable situation by him being removed to
Australia. Australia is a common law country and the courts have
ample powers to protect children. The father can either take
proceedings of his own accord – which he says he will – or he can
alert the appropriate local authority in Australia and the
Australian court can make whatever order is required, if any, to
protect the children.”

In an earlier passage in his judgment Balcombe LJ made these more
general observations:

“I stress once again that the whole purpose of this Convention is
not to deny any hearing to a father in the circumstances of this
father; it is to ensure that parties do not gain adventitious
advantage by either removing a child wrongfully from the country
of usual residence, or, having taken the child with the agreement
of the other party who has custodial rights to another
jurisdiction, then wrongfully to retain that child. The purpose of
the Convention, and of the Act which embodies it as part of the
law of this country, is to ensure that the right court should deal
with that sort of issue. The right court in this case is the South
Australian court . . .”

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 . . .” See also to the like effect Brown v
Director-General, supra.

The issues raised by the wife in her affidavit may be important
when the custody case is being heard in Switzerland; they have
little or nothing to do with the question of the child’s return to
that country for that purpose.

The second point which we make is this. If any of the matters of
reg 16(3) is made out, the trial judge has a discretion whether or
not to enforce the Convention by making an order for the child’s
return. It would be to seriously misunderstand this sub-regulation
if it were thought that once such a matter was established the
court must refuse to make an order for return. In this particular
case there were, we think, compelling reasons why an order for
return to Switzerland should have been made. The child was born in
that country and has lived there throughout the whole of his life.
The parties have lived there since shortly after their marriage.
The facts to be relied upon by the wife as justifying her view
that the husband was not an appropriate future custodian of the
child are facts which arose in that country. Switzerland is
obviously the appropriate forum to determine those factual issues.
It would be impossible to determine them satisfactorily in
Australia.

Finally we should mention one further matter. Mr Guest placed
emphasis upon the fact that the wife was not cross-examined and
that the husband did not give evidence either directly or by
affidavit. Whilst there may be cases where such a course is
appropriate, the large majority of cases under the Convention are
intended to be heard expeditiously by a summary form of procedure
to enforce or otherwise the terms of the Convention.

In Re A, supra, Nouse LJ considered that the Convention and the
English Act were to “provide for a summary return to the country
of their habitual residence of children who are wrongfully
retained in another country in breach of subsisting rights of
custody”. ‘

In Re Evans, supra, Balcombe LJ repeated those remarks with
approval and said that:

“That must be the approach of courts in this country. if the
submissions which Mr Levy has so ably made to us on behalf of his
client were to be accepted, I believe that it could drive a coach
and horses through the provisions of this Convention, since it
would be open to any `abducting’ parent to raise allegations under
Art 13, and then use those allegations, whether they were of
substance or not, as a tactic of delaying the hearing by saying
that oral evidence must be heard, information must be obtained
from the country of the child’s habitual residence, and so on.
That is precisely what this Convention, and this Act, were
intended to avoid, and in my judgment the courts should be astute
to avoid their being used as machinery for delay. In this case the
Australian courts are the proper courts in which to investigate
the allegations made by the father; if those allegations are of
substance I have no doubt the Australian courts will deal with
them appropriately.”

We agree with those views.

Solicitors for the appellant: Trumble & Palmer.

Solicitor for the respondent: Gordon Lewis (Government Solicitor).

BARBARA GUTHRIE
BARRISTER