FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA AT MELBOURNE [WMH FN1]
BETWEEN:
No. ML.11184 of 1992
DEPARTMENT OF HEALTH AND COMMUNITY SERVICES (As the State Central
Authority), (Applicant)
and
I. E. , (Respondent)
CORAM: THE HONOURABLE JUSTICE KAY
DATE OF HEARING: 23 DECEMBER 1992
DATE OF JUDGMENT: 23 DECEMBER 1992
REASONS FOR JUDGMENT
APPEARANCES: Mr Thomas of Counsel instructed by the
Victorian Government Solicitor, 200 Queen
Street, Melbourne, appeared on behalf of the
applicant Department of Health & Community
Services.
Mr Dwyer of Counsel instructed by George A.
Madden Pty., 1175 Heatherton Road, Noble
Park 3174, appeared on behalf of the
respondent wife.
Catchwords: CHILD ABDUCTION — Hague Convention –
Child’s wishes – Whether “forthwith return”
can be delayed for 21 days – Articles 12 and
13.
This is an application brought pursuant to the provisions of the
Family Law Child Abduction Convention Regulations, which
themselves incorporate the Convention on the Civil Aspects of
International Child Abduction known as the ‘Hague Convention. [WMH
FN2] It is a convention which applies in this case between the
United Kingdom of Great Britain and Northern Ireland and
Australia. The child, the subject matter of the application, is
A. E. , born 10 September 1981.
The applicant is the Secretary of the Department of Health and
Community Services. The respondent is the mother of the child.
A. is the child of R. E. and I. S. , formerly
E. . He was born in England and lived all of his life in
England until earlier this year. His parents were divorced, and
according to the material before me, there is an order of the
Bishop Auckland County Court (England) that the child is in the
joint custody of his parents, the mother having care and control,
and I quote:
And it is directed that the said child be not removed
from England and Wales without leave until he or she
attains the age of 18 years, but provided that if
either parent were to give a general written
undertaking to the Court to return the said children to
England and Wales and called upon to do so, and unless
otherwise directed with the written consent of the
England and Wales for any period specified in such
written consent…
There is an additional notation to the order of the Court:
Either parent may request the passport office, Clive House, Petit
France, London, not to issue a passport allowing the child to go
abroad without his or her knowledge.
According to the material filed on behalf of the applicant, the
father gave permission to the mother to take the child abroad for
a short holiday. To that end he filed with the Australian
Consulate in Edinburgh a document annexed to an affidavit of the
mother’s which reads:
I, R. E. , of 35 Greenways, Sunnybrow Crook, Co.
Durham, consent to my child, A. R. E. , being
issued with a visa to visit Australia. I understand
that such permission may have the effect of enabling
the child to travel to Australia without further
permission on my part –
Then there appears in handwriting:
for six weeks school holidays only.
There are other parts of the document which are not pertinent.
Mr E. was having regular access to his child, according to the
material. He agreed that there be a holiday from 20 July 1992 to
31 August 1992. Apparently that holiday was delayed and that on 23
August 1992, after the father had had some holiday access to the
child, he says:
I returned A. to his mother at 5 pm and said that I
would see him on Wednesday, 26 August. However, a note
(copy enclosed) was posted through my letter box while
I was at work on Wednesday 26 August 1992 saying she
had taken A. to Australia. After making inquiries,
Mrs I E. ‘s brother’s wife said she thought they had
gone for nine weeks and that they had gone on Monday 24
August 1992. It came to my knowledge that boxes
etcetera had been carried out of Mrs I. E. ‘s home.
So –
It is a bit disjointed –
. . . who said she had not terminated the tenancy. I
also checked with education authority regarding keeping
A. from school. On 28 September 1992 my daughter
Judith, who resides with me although she has a room in
Newcastle-upon-Tyne where she is a nurse at Freeman
Hospital, informed me that her mother had phoned to
tell me that she had been married to Reverend R
S. . My daughter was devastated as the man her
mother had married came to England as a minister in the
Methodist church.
Now, it appears clear from Mrs S. ‘s material that she says,
in March 1992 when she first sought permission to come to
Australia, she intended to stay only for two months.
On 28 September 1992 I flew from Sydney to Melbourne to
marry Reverend Bob S. . I married Bob S.
on 1 October 1992.
The rest of her affidavit is somewhat disjointed and does not deal
with why it is that she has overheld the child in Australia.
Her counsel has conceded that there is within the meaning of the
Hague Convention, a wrongful retention of the child in Australia.
The father seeks the return of the child through the State
authority. The mother resists the return of the child.
Article 12 of the Hague Convention provides that:
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 wrongful removal or retention,
the authority concerned shall order the return of the
child forthwith.
Article 13, insofar as it is relevant, provides:
The judicial or administrative authority may 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.
This today is the sole ground upon which the mother relies, namely
that this 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 and that I should in any discretion that I have,
refuse to order the return of the child. When counsel appeared
before me last Friday there was suggestion that there might be
some further argument under one of the other portions of Article
13, but that has been not raised today.
In support of the contention that this matter moves from a
mandatory return to a discretionary return by operation of
provisions of Article 13, the mother relies upon an affidavit by
one Lawrence Moloney, psychologist, who saw A. on Saturday
for 50 minutes. Mr Moloney is well known to the Court, being a
former Director of Counselling of this Court and an experienced
psychologist. He says insofar as is relevant, the following:
“A. impresses as a delightful child. There is a
sadness and seriousness about him, but also a sense
that somewhere along the line the quality of care he
has received has been good. There is no real question
about A. ‘s attachment to both his parents, he does
not doubt his father’s love for him and seems to be
able to distinguish this from the memories of conflict
between his parents. When he spoke of his own love for
his father … it was a very moving moment.
The current arrangements undoubtedly represent a
significant loss for A. , however short of Mr and
Mrs S. going to live in England or the
possibility in theory at least that Mr E. might
migrate to Australia, it is almost certain that A.
will miss out on a truly ongoing relationship with one
of his parents.
Despite his love for his father A. expressed a
clear wish to remain in Australia with his mother and
his step father; he is mature enough in my view to have
a reasonable understanding of the consequences of
expressing such a wish. Whist it is likely that he had
been influenced by his mother with regard to the
direction of his wishes, there is no evidence of the
sort of brainwashing or parent alienation described by
Byrne and Moloney elsewhere.
A. indicated he was anxious about telling his
father that he wanted his mother to be his day to day
parent, he said he knew it would upset him. I believe
that A. feels strongly attached to his mother and
it is likely that this situation has endured over a
lengthy period of time, but it has to be said that in
cases such as this an element of recency effect is
usually operating – to what extent would A. ‘s story
differ if he had recent contact with his father as well
as with his mother, we cannot answer this question with
certainty, nor is it easy to assess the effect of Mr
S. ‘s attentions during what is a major holiday
period in Australia.
A. is currently being treated to frequent fishing
trips; the house in which he lives being close to the
sea, he has also enjoyed other significant outings
recently, such as a day night cricket match at the
Melbourne Cricket Ground. A. is clear in his mind
that should the Court order his return to England, he
would want the English Court to allow him to return
with his mother to Australia. Again it is impossible to
say with certainty that this would remain his view were
he to find himself back in the familiar environment of
England.”
In conclusion Mr Moloney says:
“A. ‘s wishes in this matter seem clear, though
relatively young and though unable to know all the
consequences of his position, I believe he has a
reasonably mature grasp of the implications of his
request to remain in Australia. My recommendation at
this stage is that should it be judged to fall within
the spirit of the Hague Convention, the Court may wish
to consider adjourning this matter for a period
sufficiently long to allow Mr E. time to read the
transcript of the interview with his son and should he
so desire, listening to the tapes.”
That is the extent of the evidence upon which I am asked to
declare that an eleven years and three month old child has
obtained an age and degree of maturity which it is appropriate to
take account of his views and that he objects to being returned.
I do not on the material before me believe that material satisfies
me that the exception to the Hague Convention has been made out.
Even if I am wrong about that and this is a mature eleven year and
three month old child, I have a discretion in the matter. It seems
to me it would be inappropriate to exercise that discretion in
favour of the mother.
This is a clear and flagrant breach of an order of a foreign court
and an arrangement between the parties. It is the very thing at
which the Hague Convention is aimed. It is the very thing at which
the common law, as decided in such cases as Schwarz v.Schwarz
(1985) FLC 91-618, makes abundantly clear that the courts view as
thoroughly inappropriate behaviour. The Full Court of this Court
in Gsponer v. Director General Department of Commununity Services
(1989) FLC 92-001 following a considerable amount of other
authority, has indicated that the Hague Convention is to be read
restrictively insofar as the exceptions are concerned. [WMH FN3]
I agree with those sentiments and would indicate that the
underlying object of the Convention has to be met, namely to
secure the prompt return of children wrongfully removed to or
retained in any Contracting State and this clearly has happened in
this case. There is some authority in respect of the maturity of
the child exception to Article 13 being applied. The initial
discussion on the articles that I have been able to read,
particularly Mr Anton’s article on the Hague Convention [WMH FN4]
would indicate that the Hague Convention does not apply to
children over 16.
The imposition of Article 13, the condition about the wishes of
the child was an appropriate compromise to-make sure that one was
not sending back a 15 year old child who, by the time he got back
would be 16. At the same time it was not a general opportunity for
young children to have their views expressed and given
considerable weight so as to effectively override the Convention
where there had been a recent removal. Such an expressed view may
be incapable of being said to be a mature view because the child
would be unable to consider all of the available options after
having had an opportunity of living in both environments (i.e. in
the absence of one or other parent), to then discuss the options.
This child has not had the opportunity to go back to his father
and talk to his father about being in Australia, he has been
simply held over here.
There is a decision recently of Hewbank J. in S. v. S. (Child
Abduction) 1992, 2 FLR 31, where his Honour decided to act on the
views of a young child. There the fight was between France and
England. The child was having a significant degree of difficulty
with being an Anglophonic person living in France to the degree
where the child was, it is said, miserable at French school, like
a fish out of water, being forced to speak French made her stammer
and there was ample weight from psychologists that the child was
able to form independently, a very clear view as to her wishes in
the circumstances.
In those circumstances Hewbank J. declined to make an order for
the return of the child. I do not see that those facts that
effected his Honour in that case have any application here.
Indeed I may also make reference to the decision of the Court of
Appeal in Re A (minors: Abduction Acquiescence) 1992 FLR 14. The
case mainly turned on an issue of whether an Australian father,
having learnt that his child was abducted to England wrote to the
mother and said, I do not like what you have done, it really is a
disastrous thing, but I do not suppose there is much I could do
about and I would hate to put us through the agony of litigation,
and then later that day he got legal advice that the Hague
Convention existed and he brought a Hague Convention application
and some may say rather surprisingly, the English court held that
he had acquiesced in the retention of the child in England.
The trial Judge then said that acquiescence was the end of it and
he did not have to send the child back. The Court of Appeal
acquiesced with the trial Judge if I may say so insofar as
agreeing that the acquiescence point had been made out, but they
also indicated that all that did was create a discretionary remedy
to send the child back rather than a mandatory one. I quote Lord
Donaldson of Lymington, the Master of the Rolls MR:
Let me say it once that I unreservedly accept the vital
importance of protecting children from the harmful
effects of their being wrongfully removed from their
country of habitual residence usually clandestinely and
often in circumstances calculated to cause them harm.
This is the mischief to which the Act and the
Convention which is scheduled to the Act set out to
address, they do so by providing for automatic return
in accordance with Article 12 if the issue arises
within 12 months of a wrongful removal or retention,
and also later in that case, subject to it not having
been demonstrated the child is by then settled in its
new environment.
All this demonstrates the agreed international response
to wrongful removal. The child must go back and the
status quo ante must be restored without further ado.
That said, the Convention does itself enter a caveat
which is contained in Article 13. Before I consider
whether it applies in this case, it is I think
important to emphasise what is the consequence if it
does apply. It is not that the Court will refuse to
order the return of the child to its country or
jurisdiction of habitual residence. It is not that the
Court will assume a wardship or similar jurisdiction
over the child and consider what order should be made
as if the child had never been wrongfully removed or
retained.
The consequence is only that the Court is no longer
bound to order the return of the child, but has a
judicial discretion whether or not to do so. That
discretion being exercised in the context of the
approach of the Convention. In the comparatively rare
case in which such judicial discretion fails to be
exercised, there will be two distinct and wholly
different issues confronting the Court.
(1) In all the circumstances is it more appropriate
that a court of the country to which the child has been
wrongfully removed or in which it is being wrongfully
retained (country B) should reach decisions and make
orders with a view to its welfare, or is it more
appropriate that this should be done by a court of the
country from which it was removed or to which its
return has been wrongfully prevented (country A)?
(2) If, but only if, the answer to the first question
is that the court of country B is the more appropriate
court, should that court give any consideration
whatsoever to what further orders should be made, other
than for the immediate return of the child to country
A, and for ensuring its welfare pending the resumption
or assumption of the jurisdiction by the courts of that
country. In considering the first issue the court of
country B should approach the matter by giving the
fullest force to the policy which clearly underlies the
Convention in the Act, namely that wrongful removal or
retention shall not confer any benefit or advantage on
the person usually a parent who has committed the
wrongful act.
It is only if the interests of the child render it
appropriate that the courts of country B. rather than
country A. shall determine its future, that there can
be any exception to an order for its return. This is
something quite different from a consideration of
whether the best interests of the child will be served
by its living in country B rather than country A. That
is not the issue unless Article 13(b) applies. The
issue is where decisions in the best interests of the
child shall be taken by one court rather than another.
If, as usually should be the case, the courts of
country B decide to return the child to the
jurisdiction of the courts of country A, the latter
courts will in no way be inhibited from being given
permission for the child to return to country B or
indeed becoming settled there and so subject to the
jurisdiction of the courts of that country, but that
will be a matter for the courts of country A.
Now it is quite clear from the application of the principles laid
down by the Master of the Rolls that this child should be returned
and forthwith to England. I now turn to the mechanics of that
exercise. The Convention says under Article 12:
. . . the authority concerned shall order the return of
the child forthwith.
The mother in this case says that she will voluntarily return the
child leaving Australia on 18 January. Do I have any discretion
in the matter? Is that within the spirit of the Convention? I
have, in the limited time I have been able to research this
matter, come across two slightly conflicting decisions on this
matter, they are both first instance decisions. I am unaware
whether either were reported, they exist in the data bank of Mr
William Hilton Attorney at Law, California, who is as I understand
it one of the leading experts in the Hague Convention in the
United States of America
Lord McCluskey in the Scottish Case of Viola 20/2/87 No. 1988 SLT
8, when discussing the form of an order for the return of a child
to Canada, stated that he should simply make an order in terms of
Article 12(1) for the return of the child forthwith.
However, he then tempered that with the words:
Accordingly parties will no doubt understand that the
order to deliver forthwith supplemented by granting a
warrant to messenger-at-arms and Sheriff Officers
should be interpreted as meaning that the respondent
must deliver the child to the petitioner as soon as the
petitioner arrives in Scotland and is able to arrange
for the return of the child to Canada.
So in that case a forthwith order did not mean a forthwith order.
It meant ‘a forthwith – as soon as somebody arrives to collect the
child’, order. A more liberal view seems to be taken by Hewbank J.
in the matter of Re Arthur (a minor), which was before the High
Court of Justice Family Division on 13 January 1988.
There seems to be some currency in English children going to
Australia and Australian children going to England because Re
Arthur was yet another example of an Australian child being
wrongfully removed to the United Kingdom. Simon, the subject
matter of the application, was 2 and 3/4 years of age. His mother
took him to England. The father applied for a return under the
Hague Convention. Counsel for the mother said in the course of the
discussion:
In your Lordship’s judgment in Re A, your Lordship
having come to the same decision made an order for
return of the child forthwith, which is the wording
used in Article 12, and included a provision which can
be found at page 10 of the judgment of the Court of
Appeal postponing the operation of that order provided
that the mother there as it was returned to Canada
within six weeks.
I would ask your Lordship to make similar provision
here. In relation to the actual period, I do not think
my client has a ticket here but she believes that her
ticket has on it a return date of 11 March or
thereabouts. That is actually 8 weeks and 2 days. My
instructing solicitor and I believe she would probably
be able to change the date on the ticket, but obviously
that is something she will have to make inquiries about
and she would also have to acquire a ticket for Simon.
Therefore, if your Lordship thinks it is a reasonably
appropriate period I am not going to seek to extend
that but I mention it.
HEWBANK J: You say that 12 March is the date?
MR POINTER: 11 March, my Lord.
HEWBANK J: I will say, on or before 11 March.
The father, who is the instigator of the proceedings although not
the applicant before me, has not been given a chance to be heard
in respect of the suggestion by the mother that if she is obliged
to return the child, it will be by 19 January. I propose to make
an order to the effect that if the child has not been returned to
the United Kingdom by 19 January 1993, then the child is to be
delivered up immediately to the central authority to enable them
to make arrangements for the forthwith return of the child, and I
propose also to give liberty to the father to apply in respect of
the provision of that date so that he can be heard on the issue
should he wish to submit that the child should be in fact returned
prior to 19 January.
In the matter of CSV and E. I make the following orders:
1. That failing the voluntary return of the child A. E.
born the 10th day of September 1981 to the United Kingdom on
or before the 19th day of January 1993, the said child is to
thereafter forthwith be returned to the United Kingdom
pursuant to the provisions of the Family Law (Child Abduction
Convention) Regulations.
2. That the State Central Authority have liberty to apply for a
reduction in the time during which the child may be
voluntarily returned after obtaining further instructions
from the child’s father, R. E. .
FOOTNOTES — THESE ARE FROM WM. M. HILTON AND ARE NOT PART OF THE
ORIGINAL DECISION.
——————–
1. This decision was graciously contributed by The Honourable
Justice Joseph V. Kay, Judges Chambers, Family Court of
Australia, Melbourne, Australia.
2. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention].
In the United States it is implemented by the International
Child Abduction Remedies Act, 42 USC 11601 et seq.
3. This is also seen by No. 34 of the Perez-Vera Report: “To
conclude our consideration of the problems with which this
paragraph deals, it would seem necessary to underline the
fact that the three types of exception to the rule concerning
the return of the child must be applied only so far as they
go and no further. This implies above all that they are to be
interpreted in a restrictive fashion if the Convention is not
to become a dead letter. In fact, the Convention as a whole
rests upon the unanimous rejection of this phenomenon of
illegal child removals and upon the conviction that the best
way to combat them at an international level is to refuse to
grant them legal recognition. The practical application of
this principle requires that the signatory States be
convinced that they belong, despite their differences, to the
same legal community within which the authorities of each
State acknowledge that the authorities of one of them – those
of the child’s habitual residence – are in principle best
placed to decide upon questions of custody and access. As a
result, a systematic invocation of the said exceptions,
substituting the forum chosen by the abductor for that of the
child’s residence, would lead to the collapse of the whole
structure of the Convention by depriving it of the spirit of
mutual confidence which is its inspiration.”
4. The International and Comparative Law Quarterly, Volume 30,
Part 3, July 1981: THE HAGUE CONVENTION ON INTERNATIONAL
CHILD ABDUCTION (Start: Page 537]). A. E. Anton. Member of
Scottish Law Commission. The author was chairman of the
Commission of the Hague Conference on Private International
Law which drafted the Convention.