AUSTRALIA – HICKS – 1987

AUSTRALIA – HICKS – 1987 (1987) (Return ordered) HICKS v HICKS. Mother takes child to Australia. Court orders the child returned to the United Kingdom. Return is delayed until the mother has a chance to oppose the return under article 13.

FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY No. S1808 of 1987

IN THE MARRIAGE OF:

FRANCIS JOHN HICKS (Husband)

AND

PAULA ANN HICKS (Wife)

AND

DIRECTOR-GENERAL OF DEPARTMENT OF
YOUTH AND COMMUNITY SERVICES

(Central Authority)

BEFORE THE HONOURABLE MR JUSTICE P.E. NYGH

DELIVERED ON THE 10th DAY OF APRIL 1987

*JUDGMENT*

(Ex-tempore)

APPEARANCES:

MR CUMMINGS of H. K. Roberts, Crown Solicitor, DX 19 Sydney,
(Central Authority) for and on behalf of the applicant husband.

COPY TO:

Messrs. Hancock Alldis & Co., Solicitors, DX 11314 Hurstville, for
and on behalf of the respondent wife.

This comes before me as an ex parte application made pursuant
to Family taw (Child Abduction) Regulations which came into force
on 1 January 1987. The facts of the case can be briefly stated.
The parties in this case were married on 29 November 1980 in
Australia. The husband is a farmer resident in Bude in the county
of Cornwall in the United Kingdom.

The wife, it would appear, is an Australian Citizen. The
parties established their matrimonial residence in Cornwall and
the only child of the marriage, Eleanor Bronte Hicks, was born
there on 17 June 1983. The wife left the husband on 30 July 1986
to live on her own in a flat elsewhere in Bude, and since that
time the parties have remained separate and apart.

The husband has filed in the County Court at Bodmin a divorce
petition in which he seeks the dissolution of his marriage and in
which he seeks certain consequential orders including an order for
the custody of the child with reasonable access to the respondent.
That petition has not as yet been dealt with in the County Court.

In the arrangements which occurred after the wife left, it
would appear, on the husband’s evidence, that the child remained
in the care and control of the father. She remained resident in
the former matrimonial home, where the father and his mother
continued to reside. The wife has alleged in an affidavit which
was filed in pursuance of her application for custody in this
Court that she took part in the care and control of the child on a
daily basis.

The situation remained thus until Thursday, 12 March 1987. On
13 March 1987, it is alleged – and it is certainly not denied in
the wife’s affidavit – that she took the child away from Bude and
flew to this country. It is alleged that she is currently living
within the Sydney metropolitan area.

The application before me was instituted by and on behalf of
the Director-General of the Department of Youth and Community
Services of New South Wales, who, I am satisfied, by virtue of the
material in evidence as exhibit “A” is pursuant to Regulation
8(1), the Central Authority in and for the State of New South
Wales.

I am also satisfied that, by reason of the fact that the
application was filed in this Registry and the child is alleged to
be resident within the State of New South Wales, that he is acting
within the scope of his authority as delegated by the
Attorney-General of the Commonwealth.

I am further satisfied by reason of the document admitted in
evidence as exhibit “B” that the Director-General has made a
delegation of his functions as the State Authority to David
Patrick Croke, whose occupation is Senior Legal Officer with the
Department of Youth and Community Services.

The next question is the question of whether or not at the
relevant time the United Kingdom was a convention country within
the meaning of Regulation 10. It is not listed in Schedule 2 to
the Regulations. By reference to the document which was admitted
in evidence as Exhibit “C”, I am satisfied that the United Kingdom
ratified the convention at the end of 1986. I am further
satisfied by reference to matters of which I can take judicial
notice that the United Kingdom was a signatory to The Hague
Convention on the Civil Aspects of International Child Abduction;
that therefore upon ratification by the United Kingdom following
the earlier ratification by Australia, the Convention entered into
force as between the United Kingdom and Australia. Consequently,
the United Kingdom is a convention country within the meaning of
Regulation 10 paragraph (b).

The next question which arises is whether or not the
situation before me falls within the scope of Article 3 of the
Convention. That reads, and I quote:-

“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, 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; and

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

There are four issues to be considered:-

firstly, whether the father at the time of the removal had a right
of custody either jointly or solely under the law of the United
Kingdom; secondly, whether the child was, at the time of the
removal, habitually resident within the United Kingdom; thirdly,
whether his rights of custody were actually being exercised at the
time of removal by Mr Hicks; and fourthly, whether the removal was
in breach of that right of custody.

Dealing with those matters one by one: By virtue of Section
1(1) of Guardianship Act 1973, the parents of a minor have equal
rights, exerciseable by either without the other, regarding the
custody of a child. The Children Act 1975, Section 85, provides in
sub-section ‘1’ that ‘parental rights and duties’ means as
respects a particular child, “all rights and duties which by law
the mother and father have in relation to a legitimate child and
his property.”

Sub-section ‘3’ of that same section provides:-

“Where two or more persons have a parental right or duty
jointly, any one of them may exercise or perform it in
any manner without the other or others, if the other, or
as the case may be, one or more of the others have not
signified disapproval of its exercise or performance in
that manner.”

Those provisions indicate to me that under the law of England
at the relevant time Mr Hicks was jointly with Mrs Hicks entitled
to exercise the rights of custody in respect of the child of the
marriage. ‘Joint’ in this context means that the right is shared
with the others, it does not relate to the manner of its exercise.

The next question is where the child was habitually resident
at the time of the removal, and there is on the facts that I have
recited, no doubt whatsoever that the child having lived all her
natural life in England, was resident in that country at the
relevant time.

the third question is whether the joint right of custody of
Mr Hicks was actually being exercised at the time of the removal,
and again, I have no doubt whatsoever, on the evidence before me,
that whatever Mrs Hicks’s role during the day in the child’s care,
there is no doubt that at the relevant time he was actually
exercising rights of custody in respect of the child who was
living with him in his residence.

The fourth question, then, is whether there was any breach of
his right of custody. Although section 85(3) of the Children Act
19?5 could be read extremely broadly as meaning that unless Mr
Hicks had signified his disapproval, the wife was free to take the
child out of the country, it is my view that it clearly is – and
the Convention contemplates it – a fundamental breach of the
parental relationship when either parent takes a child out of a
Convention country without the consent of the other parent which
may be given either expressly, or as the Convention has it, in
certain circumstances by acquiescence. There is, again, no doubt
whatsoever that Mr Hicks at no stage either consented to, or
acquiesced in, the removal of the child from the United Kingdom,
and indeed he took immediate steps for the recovery of the child,
as is indicated by the orders made in the High Court of Justice,
whereby the child was made a ward of court on an urgent basis, and
the request for her return, which was transmitted through the Lord
Chancellor’s office to the Australian Attorney-General’s office,
as the respective Central Authorities in the two countries.

I am therefore of the view that on the evidence presented by
the husband he has established a prima facie case that the removal
of the child falls within the scope of Article 3 of the
Convention, and that therefore this court is under an obligation
pursuant to Article 12 of the Convention to order the return of
the child forthwith to the United Kingdom.

However, under Article 13, it is open to the respondent wife
to oppose the return of the child within the very limited grounds
set out in paragraphs (a) and (b). The proviso that the court may
also refuse to return the child where it objects to being returned
and is able to form a concluded view by reason of age and degree
of maturity, does not appear to be relevant to a child aged 3 1/2.

It is quite obvious that the wife must be afforded the
opportunity to place material before the court which could
establish her case within paragraphs (a) and (b) of Article 13. It
is also quite clear, under the obligation which is imposed on me
by the Convention, that such a matter must be dealt with
expeditiously and with the least delay.

Having regard to the circumstances on the husband’s evidence
and not seriously disputed by the wife in her affidavit – in which
the child was removed from the United Kingdom, it is my view that
a proper order in these circumstances would be an order which will
secure the return of the child to the husband pending the
determination of the matter.

At the same time, so as to avoid the matter being precluded
by events, there must be an obligation imposed on the husband to
remain in this country until such time as the matter has been
dealt with by the court. I therefore propose to make orders which
will order the wife to surrender all current passports relating to
herself and the child, which will restrain her from removing the
child from the Commonwealth of Australia, which will authorise the
issue of a warrant for the apprehension of the child, which will
until further order place the child in the custody of the husband,
on the conditions that he surrender his passport to the Registrar
of this court pending further order, and on condition that he and
the child remain within Australia pending the determination of the
matter.

I will give directions for the service of the respondent
within a limited time and also provide for a return date.

I make the following orders:-

(1) That until further order, the respondent wife surrender
forthwith to the Registrar of the Sydney Registry of the Family
Court of Australia, all current passports relating to herself and
the child Eleanor Bronte Hicks, born in Devon, England, on 17 June
1983.

(2) That until further order, the respondent wife is hereby
restrained from removing the said child from the Commonwealth of
Australia and that all officers of the Australian Federal Police
and the Department of Immigration and Ethnic Affairs give effect
to this order.

(3) That a warrant issue in accordance with Form 50 addressed to
the Marshall, all officers of the Australian Federal Police, and
all officers of the police forces of the States, directing the
same to take possession of the same child and to deliver the
child to the husband, Francis John Hicks.

(4) That until further order, the said child be placed in the
custody of the applicant father on condition that:-

(a) he surrender his passport forthwith to the Registrar of
this registry, to be held by him pending further order; and

(b) he does not, pending further order, remove the said
child from the Commonwealth of Australia.

(5) That the wife be served with sealed copies of the application
and the annexures and of these orders no later than 6.00 p.m. on
Tuesday, l4th April 1987, and that the application be returnable
before this court on Thursday, l6th April 1987.

(6) That sealed copies of these orders be served upon:-

(a) the Commissioner, Australian Federal Police;

(b) the Secretary, Department of Immigration and Ethnic
Affairs;

(c) the British High Commissioner; and

(d) Messrs. Hancock Alldis and Company of 243 Forest Road,
Hurstville.

(7) I reserve to each party liberty to apply on 24 hours
notice.