AUSTRALIA – KARIDES – 1996 (1995) (Return ordered) (there is a great discussion of “Grave Risk” on pages 12-16) KARIDES v KARIDES, Mother took child to Australia. Court rules that the child should be returned to the United States.
Dept of Health & Com Services v Karides (Australia 1995)Family Court, Melbourne No. ML.2927 of 1995
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FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA AT MELBOURNE
No.ML.2927 of 1995
BETWEEN:
JOHN PRYDE PATERSON
SECRETARY, DEPARTMENT OF HEALTH AND COMMUNITY SERVICES STATE
CENTRAL AUTHORITY
(Applicant)
and
JAMES PETER KARIDES
(Husband)
and
MARY LOUISE KARIDES
(Wife)
CORAM: THE HONOURABLE JUSTICE KAY
DATE OF HEARING: 22 MAY 1996
DATE OF JUDGMENT: 23 MAY 1996
REASONS FOR JUDGMENT
APPEARANCES:
Miss Bennett of Counsel, instructed by the Victorian Government
Solicitor, DX 30 Melbourne, appeared for the State Central
Authority.
Mr Ackman one of Her Majesty’s Counsel, instructed by Middletons
Moore & Bevins, DX 405 Melbourne, appeared on behalf of the
Husband.
Mrs Carter of Counsel instructed by Hale and Wakeling, DX 30207
Richmond, appeared on behalf of the Wife.
I want to begin by stating that several media reports of these
proceedings have charectorised them as custody proceedings. They
are not. At issue is in which country custody proceedings should
take place.
This is an application brought by the Secretary to the Department
of Health and Community Services as the State Central Authority
pursuant to the provisions of the Family Law Child Abduction
Convention Regulations (the regulations) seeking the return to the
United States of America of the child Adam James Karides born 18
September 1994.
The Regulations 1986 represent the Federal Government’s
implementation of the Convention on Civil Aspects of International
Child Abduction (known as the Hague Convention).
Australia ratified the Convention with effect as and from 1
January 1986. The United States ratified the Convention with
effect from 1 July 1988. The accession by the United States to
the Convention contained certain reservations which it has not
been suggested are relevant to the proceedings before the Court.
I will refer to the parents of Adam as the husband and the wife.
The husband was born in New York State in November 1960, and the
wife was born in Auckland, New Zealand, in November 1961. The
wife lived in Australia from aged 2 until age 28. She went to the
United States for a holiday in December1989. I pause to say that
in extracting the facts upon which this case is based I am relying
on the untested affidavit material.
According to the wife the parties married on 6 April 1992 after
living together for some 15 months. The wife asserts that the
husband was physically violent towards her on five occasions
during their relationship. She asserts that she felt extremely
isolated and greatly missed the support of her friends and family
in Australia. The wife sought some psychological assistance in
mid-1993, and was prescribed some medication which she stopped
taking upon falling pregnant early in 1994. She asserts that the
relationship remained unhappy during the pregnancy.
Just before the birth of Adam the wife’s mother came to America
from Melbourne to assist the parties during the wife’s
confinement. On the wife’s 33rd birthday on 21 November 1994,
following some birthday celebrations she says there was an
argument between the parties. According to the wife she left the
parties’ bedroom taking the child Adam with her. The husband
attempted to take the child from her. The wife’s mother
intervened, and the result of that intervention appears to be that
the wife’s mother was arrested and removed from the house and
subsequently convicted of assault. The wife then says in her
affidavit:
“The police took my mother from the house and Adam and I collected
her from a court house about 1.00 a.m. All three of us then
stayed at a hotel for two nights. The husband was aware that I
was leaving and taking Adam with me. When my friends attempted to
return to the house to collect personal belongings, they
discovered that locks to the doors had been changed.
Adam and I left the United States on or about 29 November 1994.
It appears to be common ground that the wife left the United
States without seeking the husband’s consent to that course.
It is said that three days later the husband saw some mail
relating to the wife’s application to the New Zealand Embassy for
a passport for herself and the child. He then made an application
to the Juvenile and Domestic District Court of the City of
Virginia Beach of Virginia, on an ex parte basis, and an order was
made as follows:
“That temporary custody of Adam James Karides, an infant, be
granted unto his natural father, James Peter Karides, and that the
child not be removed from the Commonwealth of Virginia until
further court order.”
The father’s application had been accompanied by a very short
affidavit stating that the mother had left the home following the
assault on 21 November, that he had no knowledge of the welfare of
the child but was concerned that the wife was preparing to take
the child and leave for New Zealand or Australia.
On 23 February 1995 the husband applied to the United States
Department of State for assistance under the Hague Convention on
Child Abduction.
Article 8 of the Convention provides :
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 article then provides for what the application must contain.
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.
The United States Central Authority transmitted the application to
Australia. I assume it went to the Commonwealth Central Authority
which in turn presumably passed it on to the Department of Health
and Community Services in the State of Victoria, which acts as the
State Central Authority in Victoria in compliance with
Regulations 8 and 9 of Regulations.
It is convenient to interpose at this stage that the Family Law
Child Abduction Convention Regulations underwent some substantial
amendments which took effect as of 1 November 1995. At the time
the application was first before the courts it had been brought
under the pre-November regulations.
No submissions were made by Counsel for the wife before me as to
whether I should be continuing to proceed under the pre-November
or post-November regulations, other than to say that reliance was
being made on Regulation 16(2) which did not exist in that form in
the previous regulations. When I come to examine the specific
regulations which are relied upon in defence to the claim I shall
endeavour to highlight any differences in the regulations, but I
perceive that there is no significant substantive difference
between them which would affect the outcome of these proceedings
so that I need not answer the question as to which is the
appropriate set of regulations for me to act under. The matter
was touched on by the Full Court in the unreported decision of
Hanurbury Brown, but the issue that was identified there was
whether the relevant regulations to be applied by the Full Court
in an appeal heard post-November in respect of a case decided
pre-November were the post-November regulations or the
pre-November regulations.
The wife deposed that after leaving the United States she stayed
in New Zealand for a short time and then came to Australia on 29
November 1994.
The wife apparently went into hiding. Attempts to trace the wife
through court and other formal processes were unsuccessful for
many months. The wife surrendered herself and the child several
days ago after the Federal police had apparently managed to locate
her premises.
An ex parte order was made on 15 March 1995 by Judicial Registrar
Nikakis placing the custody of the child in the Secretary of the
Department of Health and Community Services, in accordance with
the provisions of Regulation 15(1)(c) as it then was and
(Regulation 14(1)(d) and 14(1)(a) as they now are). Warrants were
issued for the possession of the child and the arrest of the
mother.
There were many more proceedings throughout 1995 and earlier this
year involving examining persons who may have information relating
to the whereabouts of the mother and the child.
In June of 1995 the husband was granted leave to intervene in the
proceedings and granted leave to publicise the proceedings. There
were further interlocutory proceedings over the next few months
relating to searching of bank records of the wife’s parents. On
13 May a warrant was issued empowering the Marshal and the
Australian Federal Police to enter some premises in Hawthorn and
in Templestowe to search for documents and other things that would
be likely to assist them in locating the whereabouts of the child.
The next day there were further proceedings involving cross
examination of the wife’s father. It was following that
examination that the wife apparently chose to come out of hiding
with the child.
On 17 March 1996 Mrs Carter of Counsel appeared for the wife
before Justice Frederico. The wife was given permission to reside
with the child in premises under the authority of the State
Central Authority provided she abided by the directions of the
residential worker and was not permitted to receive any visitors
at the premises. The husband was granted access to the child, and
the matter was adjourned until yesterday to enable the wife to
file any material upon which she sought to rely in opposition to
the application before the Court.
The wife has filed an affidavit by herself and an affidavit and an
affidavit by one Beatrice Melita, a consultant psychologist. The
wife says of her relationship with the child that:
“We are very closely bonded. He is in excellent health,
developing very well”.
She speaks in general terms of her preference for Australia
saying:
“My family and friends are in Australia. I believe that
Australia provides a superior environment to the United States,
particularly for children. I am concerned by the level of violence
and drug abuse in school in the United States. I am terrified of
returning to the United States as I fear for the physical safety
and emotional security of Adam and myself.”
She then asserts that as she has been the primary caretaker for
the child and as the husband is greatly involved in business, he
is :
“Unable to provide the nurturing and loving environment which I
have established for Adam.”
She says with some irony:
“Subject to appropriate safeguards and the husband establishing a
relationship with Adam, I am proposed to facilitate access. I
have not done so because of my fear of the husband and my anxiety
of his desire to remove Adam from my care and take him to the
United States would traumatise the child and deprive him of the
one constant in his life.”
She says she believes that a short separation from her would cause
Adam deep distress and considerable emotional trauma, and that she
is extremely reluctant to return to the United States because of
her fear of the husband and her isolation there. She believes
that such a return might compromise her parenting skills.
In response to the increasing need for international cooperation
the Hague Convention on the Civil Aspects of International Child
Abduction was signed by several nations on October 25, 1980
including Australia.
It has been ratified by 24 Countries and acceded to by 19 others.
There are countries from many different political and cultural
systems represented. Countries which sound to us to be exotic such
as Burkina Faso and Belize, to countries as familiar as New
Zealand and Canada. The glaring omission from an Australian
perspective are the countries Asian. The only country on the
continent of Asia that has ratified the convention is tiny Israel.
The absence of other Asian countries has caused much publisised
problems in Australia.
The preamble to the Convention and its opening articles provide
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 I – SCOPE OF THE CONVENTION
Article 1
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.
The scheme of the Convention is such that where a child is
wrongfully removed from Convention country A (in this case USA) to
Convention country B (in this case Australia) or wrongfully
retained in Convention country B, and an application is brought
within twelve months of the wrongful retention or wrongful
removal, then the courts are mandatorily required to ensure the
return of the child unless one of the exceptions to the Convention
which appear in Article 13 of the Convention and are brought into
law by Regulation 16 is established.
In Murray’s case (1993) FLC 92-416 at 80,259 the Full Ct said:
“…the principal purposes of the Hague Convention…are to
discourage child abduction and, where such abduction has occured,
to return such children to their country of habitual residence so
that the courts of that country can determine where or with whom
their best interests lie.”
As was observed by the Full Court in Gazi and Gazi (1993) FLC
92-241 at 79,623:
“The primary purpose of the Convention…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.”
Nourse LJ made a similar observation regarding the purpose of the
Convention in Re A (A Minor)(Abduction) [1988] 1 FLR 365 at 368:
“..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 specified circumstances,
the judicial and administrative authorities in the 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.”
In this case Mrs Carter on behalf of the wife sought to rely on
two defences to the mandatory return of Adam to Virginia. Firstly
she argued that there had not been a wrongful removal of the child
from the United States, and secondly she argued that if there had
been a wrongful removal, then there was a grave risk that the
return of the child to the United States would expose the child to
psychological harm or otherwise place the child in an intolerable
situation.
In support of the first of her contention Mrs Carter sought to
rely upon what she said was a concession made by Counsel for the
State Central Authority when some ex parte orders were made by
Justice Brown on 22 March 1995. Miss Bennett, Counsel for the
State Central Authority said:
“In fact the original application is rather light on for showing a
right of custody, which is necessary for this application to be
brought or to ultimately succeed. There was an affidavit sworn by
one Mona Schapiro Flax. There is a green tag where she annexes
some text which would appear to confer a right of custody.
The text which was referred to was apparently from a text book
known as Michie’s Jurisprudence, and the passage read as follows:
4. Statutory provisions. In Virginia – aside from jurisdiction
expressly given by Statute, Virginia has inherent power to decide
questions involving the custody of infants. The Virginia Statute
provides that the father and mother of every legitimate unmarried
child if living together, and being themselves, respectfully,
competent to transact their own business and not otherwise
unsuitable shall be the joint natural guardians of the person of
the child with equal legal powers and equal legal rights in regard
to it. Upon the death of either parent the survivor shall be the
natural guardian of the person of such child. If either parent
has abandoned his or her family, the other shall be the natural
guardian of the person of such child.
If the father and mother are living apart, whether partially or
absolutely divorced or not, a court of competent jurisdiction in
awarding the custody of the child to either parent or to some
other person, shall give primary consideration to the welfare of
the child, and as between parents, there shall be no presumption
of law in favour of either parent. Where the parents are living
apart and not divorced upon petition of either parent, a court of
equity jurisdiction or a court of juvenile and domestic relations
may award custody of the child to either parent.
It can be seen that the aforementioned statute places the children
of parents living apart in a class apart in respect to
guardianship. Parents’ rights are subordinated, and those of the
children are augmented to a degree not elsewhere reached.”
Unlike the proceedings that were before Justice Brown there is
before me a further affidavit of Mona Schapiro Flax filed 13 April
1995. She deposes that she is an Attorney, licensed to practise
in the Commonwealth of Virginia and has been so since May 1980.
She deposes that she regularly practises in the area of domestic
relations and family law. She deposes that she represents the
husband in attempting to secure the return of Adam to Virginia.
After making reference to Section 31.1 of the Virginia Code of
Virginia 1950, she says as follows:
“According to applicable law the rights of ‘a guardian’ of the
child include responsibility for the care and control of the
child, authority to make decisions concerning the child and the
right to the day-to-day care of the child and the right to
determine the child’s place of residence. Each parent of a child
is a guardian of the child until there is adjudication by a court
of competent jurisdiction that one party should have greater
custody rights than the other.
7. Where parties to a marriage are not living together and they
are not divorced and there are no orders to the contrary, then
both parties remain the natural legal guardians of the child.”
There is before me no evidence to contradict the evidence of Ms
Flax. The proposition she espouses makes sense and is easily
recognised as coinciding with equivalent provisions throughout the
common law world. Even in the absence of express evidence, the
Court could presume that such was the position anyway. See Toric
(1981) FLC 91-046 at 76,394.
At present in Australia the situation is governed by s 63E of the
Family Law Act. (both parents are guardians, and they are joint
custodians).
The Hague Convention and the Regulations concern themselves with
the wrongful removal of children from the place of habitual
residence of the child. Article 3 defines “the removal of a
child” as:
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 subparagraph 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 5 defines the meaning of “rights of custody:
For the purposes of this Convention –
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;
The case law has determined that these provisions need to be
liberally interpreted. In Re B (A Minor)(Abduction) (1994) 2 FLR
249 at 260 Waite J said:
The purposes of the Hague Convention were, in part at least,
humanitarian. The objective is to spare children already suffering
the effects of breakdown in their parents’ relationship, the
further disruption which is suffered when they are taken
arbitrarily by one parent from their settled environment and moved
to another country for the sake of finding there a supposedly more
sympathetic forum or a more congenial base.
The expression “rights of custody” when used in the Convention
therefore needs to be construed in the sense that will best accord
that objective. In most cases that will involve giving the term
the widest sense possible.
The specific evidence before me and the uncontradicted evidence
before me is that of Ms Flax, that the husband as a guardian of
this child in accordance with the law of the State of Virginia had
rights to determine the place of residence of the child. At the
time of the removal of the child it is abundantly clear that he
was either actually exercising those rights or would have
exercised those rights but for the removal of the child. At the
time of the child’s birth until eight days prior to its removal
from the United States, the child was living in the household with
both of its parents. The child was removed from the household by
the mother without consultation of the father. I am satisfied
that there is a wrongful removal.
Mrs Carter drew to my attention the provisions of reg 17(2) which
both pre and post November 1995 enable an Australian Court to seek
a ruling from a foreign court as to whether that court views the
events as amounting to a wrongful removal. There is not
sufficient doubt in my mind in this case as to make it appropriate
that I seek such a determination from the courts in Virginia.
Mrs Carter referred me to the provisions of the current Regulation
16(2) which provides that a court must refuse to make an order for
the return of the child if it is satisfied that:
(a) the removal or retention of the child was not a removal or
retention of the child within the meaning of these regulations.
Whilst what I am about to say involves the use of a double
negative, I am not satisfied that the removal of the child was not
a removal within the meaning of these regulations. In fact, I am
positively satisfied that the removal of the child was a removal
within the meaning of these regulations.
I move to the second defence. As I have already said The Hague
Convention is a convention that deals with the issue of what is
the appropriate forum.
Regulation 16 establishes the obligations of a court when hearing
a Convention application. In so far as is relevant it provides as
follows:
REG 16 Orders for the return of children
16. (1) Subject to subregulations (2) and (3), on application
under regulation 14, a court must make an order for the return of
a child:
(a) if the day on which that application was filed is less than
one year after the day on which the child was removed to, or first
retained in, Australia;
…
(3) A court may refuse to make an order under subregulation (1)
if a person opposing return establishes that:
(a) the person, institution or other body making application for
return of a child under regulation 13:
(i) was not actually exercising rights of custody when the
child was removed to, or first retained in, Australia and those
rights would not have been exercised if the child had not been so
removed or retained; or
(ii) had consented or subsequently acquiesced in the child being
removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child to the
country in which he or she habitually resided immediately before
the removal or retention would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation; or
(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 subregulation (3), the court must take
into account any information relating to the social background of
the child that is provided by the Central Authority or other
competent authority of the country in which the child habitually
resided before his or her removal or retention.
(5) The court to which an application is made is not precluded
from making an order for the return of the child to the country in
which he or she habitually resided immediately before his or her
removal or retention only because a matter mentioned in
subregulation (3) is established by a party opposing return.
In this case the choice is between the United States and
Australia. In my view Australia’s obligations under the terms of
the Hague Convention require that question to be answered in
favour of the hearing taking place in America unless one of the
exceptions set out in Regulation 16(3) is shown to exist, and even
then I need turn my mind to what is the appropriate forum in the
circumstances.
As the Full Court observed in Gsponer v Director General, Dept.
Community Services, Vic. (1989) FLC 92-001 at 77,158:
“…it is clear that the onus rests upon the respondent to
establish one or more of the matters set out in subreg.(3).”
When Articles 13 and 20 (the exceptions incorporated into
Regulation 16) were drafted, the negotiating countries expressed
the view that the exceptions must be drawn and construed narrowly
so that the purpose of the Convention was not compromised. (Legal
Analysis of the Hague Convention on the Civil Aspects of
International Child Abduction prepared by the State Department
p.16)
At the second Special Commission meeting to review the operation
of the Hague Convention on the Civil Aspects of International
Child Abduction (18-21 January 1993) when initiating discussion on
the exceptions to mandatory return, Adair Dyer (First Secretary)
stressed that as Article 13 counteracts the main aim of the
Convention – to secure the return of a wrongfully abducted child –
the exceptions should be used very carefully, and not at all
excessively. Discussion revealed that Article 13 had been given a
narrow interpretation in most jurisdictions and that in only a few
cases are the exceptions found to apply.
In the U.S. Explanatory Report, it was again emphasised that the
exceptions “are to be interpreted in a restrictive fashion if the
Convention is not to become a dead letter…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.”. Perez-Vera, E Explanatory Report on
the Convention on the Civil Aspects of International Child
Abduction (Permanent Bureau of the Hague Conference, 1982)
para.034
AUSTRALIA’S FIRST REPORT UNDER ARTICLE 44(1)(a) OF THE UNITED
NATIONS CONVENTION ON THE RIGHTS OF THE CHILD December 1995.
(sourced from the INTERNET)
FAMILY ENVIRONMENT AND ALTERNATIVE CARE
(h) Illicit transfer and non-return (Article 11)
1. States Parties shall take measures to combat illicit transfer
and non-return of children abroad.
2. To this end, States Parties shall promote the conclusion of
bilateral or multilateral agreements or accession to existing
agreements.
The Hague Convention on Civil Aspects of International Child
Abduction.
The Hague Convention on Civil Aspects of International Child
Abduction was ratified by Australia in October 1986 and the
Convention came into force for Australia on 1 January 1987.
Australia has accepted the accession of every other country since
that time and the Convention now operates between Australia and 38
other countries. In the period from January 1987 until February
1995there were 282 abductions to Australia and in the period from
January 1988 until February 1995 there were 211 abductions from
Australia which were dealt with under the Hague Convention which
aims to secure the prompt return of children wrongfully removed to
or retained in any country which is a party (statistics were not
kept on abductions from Australia during the first year).
Australian courts take a very strict approach in interpreting and
upholding the Convention’s principles, in particular, those
Articles which provide the exceptions to return of abducted
children. Though precise figures are not available, it is
estimated that in over 90 per cent of cases, children abducted to
Australia are ordered to be returned to their country of habitual
residence. Australia takes the view that a strict interpretation
and a uniform application of the Convention by all parties will
ensure that the Convention remains the most effective deterrent
against parental child abduction.
Australian courts have predominantly pursued the aims of the
Convention vigorously and insisted on a strict and narrow reading
of the exceptions. The general approach adopted by Australian
courts towards the exceptions in Art.13 is set out in Director
General of Family and Community Services v Davis (1990) FLC 92,182
per Nygh J at 78,226, with whom Strauss and Rowlands JJ agreed:
“..once an applicant who complains that his or her rights have
been infringed through a wrongful removal establishes that a child
has been wrongfully removed in breach of his or her rights, there
is an obligation on the Court hearing that application to order
the prompt return of the child to the jurisdiction of habitual
residence.
“…[The Convention] is directed to..two main issues: firstly, to
discourage, if not eliminate, the harmful practice of unilateral
removal or retention of children internationally; and secondly, to
ensure that the question of what the welfare of children requires
is determined by the jurisdiction in which they were habitually
resident at the time of removal.
“It is, therefore, the intention of the Convention and the
Regulations which implement it, to limit the discretion of the
court in the country to which the children have been taken quite
severely and stringently.” (my emphasis)
The Israeli courts have generally taken an equally stringent
approach. Shoshana Hetanyahu J in Tornai, Penina v Mechoulam,
David, 15 April 1992 ordered the return of children to France.
The Court refused to act on the wife’s allegations of the
husband’s violence, referring to the provisions of the Convention
which emphasize the importance of preventing delaying tactics and
expediting proceedings. It was held that the “…grave risk
provision only applied to the most extreme cases” and that the
court is merely to restore the status quo prior to the abduction
and to consider the question of the child’s welfare in the narrow
context of whether there is an exception under Art.13.
Because the exceptions in Art.13 have been narrowly construed by
New Zealand courts, only a few cases have resulted in the refusal
to order the return of the child. (Boshier J “The Hague Convention
Before and After: The New Zealand Experience” in How to Handle
Interstate and International Child Custody and Abduction Cases
prepared by the American Bar Association Centre on Children and
the Law for the Maui International Family Law Conference May 1994;
p.211).
American courts have been prepared to interpret the exceptions in
the Convention quite strictly. In Levesque v Levesque 816 F.Supp.
662 (D.Kan. 1993), the Kansas district court ordered the return of
the child to its mother in Germany finding that the case did not
fall within the ambit of Art.13. It was observed that:
“All of the exceptions which allow courts to deny return of
children under the Convention are intended to be construed and
applied very narrowly to effectuate the objectives of the
Convention. Further, finding one of the exceptions in Art 13
applicable does not make refusal of a return order mandatory.
Even if the court finds one or more of the exceptions applicable,
it may find that the child should be returned.”
The Convention is not entirely without is critics. (See TOUGH
LOVE AND THE CHILD’S BEST INTERESTS – Ontario Family Law Bulletin
November 1995 available on the Internet. It is said to focus too
much on the general evil of international child abduction, and not
enough on the individual needs of the particular child, the
subject matter of the litigation. In the case of ZP and PS the
majority of the High Court recently stated that in non-Hague cases
the focus should never be removed from the needs of the particular
child.
The Convention recognises a wider community need. It is
predicated on the basis that the wrongful removal of a child from
its place of habitual residence is contrary to the welfare of the
child. It is predicated on the basis that the courts of the place
of the child’s habitual residence are the best place to determine
issues relating to the welfare of the child.
It can be argued that, several months or years after the event of
wrongful removal the needs of the child and the evidence to
support those needs may well have lost their important connection
with the child’s habitual residence. If the fact of time lapse is
to be a reason for refusing mandatory return then that would be a
matter for an alteration to the convention. So far the signatory
States have resisted any such suggestions.
Were I to order the return of this child to Virginia there would
be nothing then precluding the wife from arguing before the courts
of Virginia, that any further proceedings relating to this child
should take place in Australia because of the change in
circumstances relating to the child, namely that all of the
witnesses as to the mother’s capacity to care for the child and
all of the circumstances in which the mother proposes to raise the
child are in Australia. But as can be seen that is really a forum
question.
It may well be that the ultimate trial of the custody issues takes
place in Australia. It may well be that ultimately the child will
remain in the custody of the mother and come and live in
Australia. The Virginia cases on custody disputes set out in the
footnotes to the exhibit to Ms Flax’s affidavit indicate that
there is a strong application of the tender years doctrine in that
State – somewhat out of step with the current approach in
Australia. What the Hague Convention effectively says is these are
issues to be determined by the Court at the place where the child
was habitually resident prior to the child being wrongfully
removed or retained.
Miss Bennett for the State Central Authority says that the
Regulation 16 argument is simple here. The pre-November 1995
Regulations read:
“A court may refuse to make an order … if it is satisfied that –
The present regulation reads:
“A court may refuse to make an order … if a person opposing
return establishes that.”
Under either Regulation, the Court must be satisfied of the
existence of one of the defences. The new regulations appears to
make it clear that the onus falls upon the person opposing the
return. I don’t think that anything turns upon the difference
between the two regulations as they were drafted.
Miss Bennett says there is no evidence whatsoever that the return
of the child to the United States will expose the child to
psychological harm, or otherwise place the child in an intolerable
situation. She says the evidence of harm exists by reason of the
affidavit of Beatrice Melita who deposes to the fact that the
separation of a twenty month old child from its primary carer
involves a grave risk of psychological harm. Miss Bennett says
there is no evidence that there will be any such separation
because the highest it can be put is that the mother says :
“I am reluctant to return to the United States.”
The mother says there is an existing Virginia custody order in
favour of the father. It is clear that this is only an interim
order made ex parte and is expressed to be “a temporary order”.
There appears no legal barrier precluding the mother from
attending before the Courts in Virginia and endeavouring to
persuade the courts in Virginia that it would be appropriate for
her to retain interim custody subject to some safeguards due to
the reality of the situation that the child only knows her as its
primary care-giver.
There is much merit in this submission in my view. In any event
because of the reasons set out in Davis’ case the argument itself
is problematic.
b) Grave Risk
There are two possible constructions of Article 13(b). On the
narrower reading, the grave risk to which the child would be
exposed if they were returned must be such that it amounts to an
intolerable situation before the case can be said to fall within
the exception. Alternatively, the Article can be construed
disjunctively, activating the judicial discretion not to return
where there is a grave risk that the child will be exposed to
either physical or psychological harm, even if this risk is not
sufficiently harmful to result in exposing the child to an
intolerable situation. FN 1
The Full Court of the Family Court in Gsponer v Director General,
Dept of Community Services, Victoria (1989) FLC 92-001 held that
the three categories were to be read disjunctively due to the
presence of the words “or otherwise”. However, the Court
emphasised that in order to satisfy the first two limbs of Art.13,
the physical or psychological harm in question must be
substantial.
In Director General v Davis (supra) the Full Court of the Family
Court held that it is not sufficient to merely establish some
degree of psychological harm, but that the degree of psychological
harm must be substantial and comparable to an intolerable
situation in order to come within the exception.
The English Court of Appeal has generally tended to adopt an
equally stringent approach to Art.13. In Re E (A Minor)
(Abduction) (1989) 1 FLR 135, Balcombe LJ held that the aim of the
Convention was to ensure that a parent who abducts a child cannot
be advantaged by this. At 144-145, his Honour commented that if
the husband’s allegations regarding the sexual promiscuity of the
wife and her drug addiction were considered by the Court in full
to determine the risk to the child, this would;
“drive a coach and horses through the provisions of this
Convention, since it would be open to any ‘abducting’ parent to
raise allegations…and then use those allegations, whether they
were of substance or not, as a tactic for 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…the courts should be astute to avoid
their being used as a machinery for delay.”
In his judgment at 145 Lincoln J observed that;
“..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 characteristic of this Convention and the Act
incorporating it.”
Budgell J of the Ontario Provincial Court in Steigerwalt-Gibson v
Ebejer, 14 December 1988 summarised the Canadian approach, holding
that ‘grave risk’ “means something of a quite severe and
threatening nature”.
The German courts have been willing to find separating a child
from his or her primary care giver brings the case within the
ambit of Art.13(b). The Family Court of Westerburg in Germany in
B v B, 29 September 1992, refused to order the return of a 15
month old baby to the United States despite that the mother acted
unilaterally and that her actions violated the father’s custody
rights. In the judgment, the Court held that;
“Although this unlawful state is perpetrated, it is in the best
interests of the child to deny this request for return…
“The Social Welfare Office has held that there is an intensive
bond between mother and child and that there is the danger of
severe disturbances and consequences for the child’s psyche to be
feared if the child is taken away from its current familiar
environment…Concerns of formal jurisprudence have to step back
if in conflict with the best interests of the child – according to
the opinion of the court.”
In AZ 9F 63/92 6 March 1992, the County Court of Bad Kreuznach,
Germany, rejected an application under the Hague Convention for
the return of a child to the United States. The Court concluded
that as the children had been cared for since birth by their
mother their focus of life was with her. To return the children
to Texas would be incompatible with the well being of the children
as they knew no-one there and as H worked full time, nobody they
knew would take care of them. FN2
A similar line of reasoning was utilised by the County Court of
Saarbr Ckenin AZ 40F 177/91, 12 July 1991. The Court did not
order the return of a 2 year old child from Germany to her father
in the United States. Whilst the removal of the child was
wrongful, the wife had been the main person in the child’s life
providing her with care and spending the whole day with her. The
father, on the other hand, had worked full-time, and would
continue to do so. Thus, if the daughter were returned, the
father would have to hire an unknown third person to care for her.
The court feared the child would suffer severe psychological
damage if she were separated from her mother. It was therefore
held that in the best interests of the well being of the child, a
return to the US would harm the child much more than the admitted
wrongful removal had. FN3
The Nurnberg County Court in AZ 8F 186/92,25 February 1992 upheld
a far more rigid interpretation of Art 13(b) ordering the
immediate return of a seven month old child to his father in
Texas. The Court dismissed the mother’s argument that by removing
the child from his mother the child would be exposed to a grave
risk within Art.13(b). Instead, the court applied the provisions
of the Convention strictly, asserting that the case was not within
an exception, as Art.13(b) has to be interpreted restrictively in
favour of the return of the abducted child. FN4
Regarding the German cases in which the Court held that to
separate the child from its mother would expose the child to a
grave risk within Art.13 (b), Carol Bruch submitted that;
“These trial court cases are wrongly reasoned. The damage that
occurs to children by the original international move was caused
by the abductor’s unilateral action. The abductor (not the return
petition) is also properly viewed as responsible for whatever
further disruption occurs in correcting that wrong by returning
the child..the German decisions just discussed reward abductors
who choose not to return to the place where the custody contest
should take place.” FN5
Separating a child from its mother has been held to constitute a
grave risk in other jurisdictions. In the Swiss decision Korowin
v Korowin, 13 February 1992, (LS No. 138036) Vice President
Handloser in summary proceedings commented that the argument;
“..that a separation between the defendant and her child would
amount to risking a serious danger of psychological harm to the
child was expressly confirmed by the summary expert opinion by the
Psychiatric University Hospital for Children and Adolescents of
December 5, 1991.” FN 6
The Town District Court of Lucerne, Switzerland, in Viola v Viola,
2 March 1990, (1990/4099/ke) refused to order the return of a 6
month old child wrongfully removed by the mother. The fact that
the husband worked long hours outside the house, and that the baby
was only a few weeks old when the wife left was regarded as
sufficient proof that the child could be seriously injured by
separation from his mother. The Court remarked that:
“The separation from the person who has up to now been his primary
contact could seriously endanger his psychic development and
stability, especially considering the fact that babies need
motherly care in a special way…The separation of a baby from its
natural mother is also only to be practiced in quite extraordinary
circumstances, which is not the case here.” FN7
Other jurisdictions have been less willing to interpret Art.13 as
including a grave risk by separation. In Issak v Issak, March 3
1993, (P.S 5382/92) Chaim Porat J, District Court of Israel
ordered the return of children to the United States and commented
that;
“The burden of proof required to show grounds for the defence
pursuant to Section 13(b) of the Hague Convention is heavy…The
children will now have to be separated from their mother after
having become attached to her following the abduction. But that
is harm which is present in every abduction and is not such as to
warrant a refusal to return abducted children.” FN8
In C v C (supra) Lord Donaldson MR, Neill and Butler-Sloss LJ held
that tye psychological harm to the child arose, not from the
return of the child, but from the mother’s refusal to accompany
him, and this did not amount to a grave risk that an order for the
child’s return would expose him to psychological harm or otherwise
place him in an intolerable situation.
Butler-Sloss LJ remarked at 471;
“Is the parent to create the psychological situation, and then
rely upon it? If the grave risk of psychological harm to a child
is to be inflicted by the conduct of the parent who abducted him,
then it would be relied upon by every mother of a young child who
removed him out of the jurisdiction and refused to return. It
would drive a coach and four through the convention, at least in
respect of applications relating to young children. I, for my
part, cannot believe that this is in the interests of
international relations. Nor should the mother, by her own
actions, succeed in preventing the return of a child who should be
living in his own country and deny his contact with his other
parent.”
In Australia, the Full Court of the Family Court in Director
General v Davis (supra) adopted a less flexible approach and held
that the fact that the four year old child would have to return
without his mother was a serious consideration, but was a
situation created by the conduct of the mother which she could not
rely upon in order to prevent compliance with the Convention.
However, other decisions have hinted at the possibility that
Australian courts may be prepared to view separation as exposing
the child to such a risk that the matter falls within the
exception to Art.13(b). Johnston JR in Bassi v Director General
of the Department of Community Services NSW (Family Court of
Australia at Sydney, 12 January 1994, unreported) decided that the
wishes of a 13 year old not to return were sufficient to refuse to
an order relating to that child. When dealing with return of her
sister he commented that to return the 6 year old “without her
mother or her sister would place her in an intolerable situation
within the meaning of the Convention”.
In Police Commissioner v Temple (No.1) (supra) at 79,829, Murray J
considered that:
“A finding of grave risk of substantial psychological harm might
be possible if there were any suggestion of the [abducting] wife
not accompanying her daughter back to England..but this is not the
case.”
Certainly the German courts have been a little more liberal in
respect of abducting mothers of young babies than have the English
and Australian courts.
Mrs Carter made some passing reference to Regulation 16(3)(a),
there is some suggestion that the evidence would establish the
husband was not exercising his rights of custody when the child
was removed to Australia, but clearly in my view the husband was
exercising such rights, or would have exercised such rights had
the child not been removed.
I should turn momentarily to the question of discretion. Even if
I am wrong with respect to the question of whether or not there
was a grave risk to this child within the meaning of Regulation
16(3)(b), that merely converts the case from one of mandatory
return to discretionary return.
In my view whilst there are several features of this case that
make it appropriate to exercise discretion not to order the
child’s return in favour of the mother, namely the tender age of
the child and the fact that the child has only known the mother as
a parent, there are countervailing issues which make it
appropriate that I return the child.
This is a classic case of exactly what the Convention is aimed at
avoiding. International abduction of children has long been
considered to be a significant social evil. It is difficult to
see how it is possible to suggest that the abductor should be
rewarded by the success with which they have been able to place
themselves underground, perhaps aided and abetted by others near
and dear to them.
This child has been deprived for its formative months of a
relationship with its father. It appears to have been deprived of
that relationship solely by the behaviour by the mother, and those
offering her succour. In my view Adam is entitled to the
opportunity to have a court determine whether or not his father is
the most appropriate person to raise him or whether his mother is
the most appropriate person to raise him, and to have determined
what relationship he should have with his non-custodial parent.
In my view there is nothing in the material before me that
precludes the wife from returning to the United States to litigate
such issues.
Whilst I recognise there is unlikely to be freely available legal
aid in the United States, there is nothing put before the Court
which would indicate that the wife would not otherwise have
resources sufficient to provide for herself and conduct litigation
within the United States. She has managed to be significantly
resourceful enough to stay underground within Australia for some
fifteen months.
Notwithstanding each of the matters identified by Justice
Lindenmayer in Regino’s case (1995) FLC 92-587, in my view I would
exercise my discretion adversely to the wife and order the
immediate return of the child to the United States. (see also N v
N (Abduction Art 13 Defence) (1995) 1 FLR 107. Applying the
sentiments of the Full Court in Murray at 80,259 It would be
presumptuous and offensive in the extreme for a court in this
country to conclude that Adam’s interests are not capable of
being protected by the Virginia authorities.
Expenses:-
Miss Bennett wants an order under Reg 30 (formerly 22), that the
wife pay the husbands costs and expenses.
22. Where a court makes an order under regulation 15, 17 or 24
it may, on the application of the responsible Central Authority,
make an order directing that the necessary expenses incurred by or
on behalf of the applicant, including travelling expenses, costs
incurred in respect of locating a child, costs of legal
representation of the applicant and expenses incurred in respect
of the return of the child, be paid by the person who removed the
child to Australia or who prevented the exercise of rights of
access.
Mrs Carter argues that the regulation applies only to the costs
and expenses of “the applicant” and that for the purposes of the
Reg. that means Miss Bennett’s client who seeks no order in its
favour. Whilst the Convention regulations talks of the aggrieved
custodian applying to a local central authority for relief
(Article 8 and Reg 11) and also talk of a Central Authority
applying to a court for an order (previous Reg 15 now reg 14), in
my view it is clear that the applicant referred to in the costs
and expenses context is the aggrieved parent. (see Reg 2 –
definition of applicant and Article 26) .
The Family Law (Child Abduction Convention) Regulations define
“applicant”as a person who has made an application referred to in
regulation 11, 13 and 24. . Reg.11 sets out that a person
claiming to have rights of custody to a child removed from
Australia can apply to the Commonwealth Central Authority who vets
the application then, if appropriate, transmits it to another
Convention country’s central authority to be acted upon.
Reg.13 requires the Commonwealth Central Authority to act upon the
receipt of applications transmitted from overseas. Reg.24 grants
rights to persons claiming rights of access to apply in writing to
a Central Authority to assist in enforcing those rights.
Finally, a Central Authority is powerless to act unless and until
someone claiming rights of custody makes an application to it.
The Convention gives the person who was exercising custody rights
prior to the wrongful removal or retention the choice of either
applying to the Central Authority of the child’s habitual
residence, who then transmits the application to the Central
Authority of the other country (in which case, the first Central
Authority to which the person applied may be the loosely termed
‘the applicant’). Alternatively, the person can apply directly
to the Central Authority of the Contracting State to which the
child was removed (in which case, it cannot be said that the
Central Authority of the country from which the child was removed
was the applicant). FN9
I will stand the matter down to enable minutes of orders to be
presented. I gather that the Dept has no objection to the mother
accompanying Adam back to Virginia if she so chooses. In my view
the child should be returned to Virginia without further delay.
1. Davis discusses these two constructions, op cit p.57
2. Schreiber, op cit case (21) p.56
3. ibid, case (6) p.16.
4. ibid, case (20) p.52
5. Bruch, C “Erfahrungen mit dem Haager Ubereinkommen uber die
zivilrechtlichen Aspekte internationaler Kindesentfuhrung” 1992
p.9
6. Hilton, op cit
7. ibid
8. ibid
9. Anton, AE “The Hague Convention on International Child
Abduction” 30 (1981) The International and Comparative Law
Quarterly 537