AUSTRALIA – LAMBERT – 1987 (Return ordered) LAMBERT v LAMBERT. Father took child to Australia. Judge ordered the return to the mother in Scotland.
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FAMILY LAW ACT 1975
In the Family Court of Australia
at Melbourne
No. M.2115 of 1987
In the Marriage of:
Roger Alan Lambert
and
Linda Kerr Lambert
and
Peter Johnstone, Director General
Department of Community Services, Victoria
JUDGMENT OF THE HONOURABLE MR JUSTICE KAY
03 Apr 1987
APPEARANCES:
Mrs. Winneke of Counsel
Instructed by:
Messers Cohen Kirby & Iser, Solicitors
90 Pall Mall
Bendigo
For Roger Alan Lambert
Mr. G. Thomas of Counsel
Instructed by the
Victorian Government Solicitor
Appearing for the Director-General
Department of Community Services
Victoria
No Appearance for Linda Kerr Lambert
This is an application brought pursuant to the Family Law
(Child Abduction Convention) Regulations, which became law on 1
January 1987; the United Kingdom is now a signatory to the
convention. The convention provides:
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.
Article 3
The removal or the retention of a child is to be
considered wrongful where–
(a) it is in breach of rights of custody attributed to
a person, an institution or any other body, either
jointly or alone, under the law of the State in which
the child was habitually resident immediately before
the removal or retention; and
(b) at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.
The rights of custody mentioned in sub-paragraph (a)
above, may arise in particular by operation of law or
by reason of a judicial or administrative decision, or
by reason of an agreement having legal effect under the
law of that State.
The Family Law (Child Abduction Convention) Regulations were
brought into force pursuant to Australia’s obligations under that
convention. Regulation 15, WMH-FN1 which is the operative order
relevant to this case, provides for an application to the Court by
the responsible Central Authority (in this case having regard to
the fact it is a Victorian case, the Director-General of the
Department of Community Services Victoria), for an order
inter-alia for the return of the child to the applicant, being in
this particular case the mother of the child.
The Court is empowered under sub-Regulation 15(1) to order
issue of a warrant for the apprehension or detention of a child.
That was done ex parte last week and the child is currently being
detained in a foster home under the auspices of the responsible
Central Authority. Regulation 15(1) further provides for
restraints on the removal of the child from the place specified in
the order, the placing of the child in an appropriate institution,
and ultimately the return of the child to the applicant. I am
empowered under Regulation 15(2) to make such of those or other
orders as I think fit.
Regulation 16 WMH-FN2 provides that I must, subject to
sub-regulation (3), order the return of the child, if the
application is filea less than one year after the date of the
removal of the child to Australia. I may refuse to make an order
by operation of Regulation 16(3) if I am satisfied that any one of
the four matters deposed to in that sub-regulation is applicable.
Those matters are as follows:
“(a) the person, institution or other body having the
care of the child in the convention country from which
the child was removed was not exercising rights of
custody at the time of the removal of the child and
those rights would not have been exercised if the child
had not been removed,or had consented to or acquiesced
in the child’s removal;”
As it will become obvious, that subsection has no application
in this case.
“(b) (and this is the subsection relied on by Counsel
for the husband)
there is a grave risk that the child’s return to the
applicant would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable situation;
(c)the child objects to being returned and has attained
an age and degree of maturity at which it is
appropriate to take account of the child’s views; or
(d)the return of the child would not be permitted by
the fundamenntal principles of Australia relating to
the protection of human rights and fundamental
freedoms.”
It again becomes obvious from the facts of this case that
paragraphs (c) and (d) of sub-regulation 16(3) have nothing to do
with this particular application.
May I momentarily turn to the facts. To do so I really need
a Scottish interpreter, having regard to the Scottish
pleadings. I shall endeavour to understand them as best I can.
Leigh Lambert, the child, the subject matter of these
proceedings was born on 11 December 1983; he has just passed his
third birthday. The father is an Australian by birth and his
mother is Scottish. The marriage between the parties broke down,
they separated in April 1986. At all times relevant since then,
until 6 March 1987, the child was in the physical possession of
his mother in Scotland. Proceedings were commenced by the
applicant, Linda Kerr Lambert (also known as Smith) in the Court
of Sessions in Scotland where she, as “the pursuer” sought a
divorce from the husband as “defender” on the basis that the
marriage had broken down irretrievably by reason of the husband’s
behaviour.
She sought custody of the child and 20 Pounds (Stg.) per week
in the name of aliment allowance. She sought what we would
recognise as a non-molestation injunction, but I think for
historical reasons it is worth quoting the language. The order
sought was:
“For interdict of the defender from molesting the
pursuer by accosting her or putting her into a state of
fear and alarm, by using foul, threatening and abusive
language towards her, by threatening her with violence
or by approaching her in public or by calling any house
she occupies or to which she may remove in the future;
and for interdict ad interim; together with a power of
arrest.”
(which is something we would recognise under section ll4AA of the
Family Law Act).
She sought :
“For interdict of the defender from removing or
attempting to remcve the child of the marriage from the
custody of the pursuer or removing him from the
jurisdiction of the Court and for interdict ad
interim.”
She sought costs.
I will not bore any reader of this judgment with the facts
alleged. The husband by answer denied that the wife should have
custody and he sought an order for custody. In the alternative he
sought an order for access and he claimed that the maintenance
being sought was excessive.
On 2 July 1986 an order was made by the Court of Session by
Lord Allanbridge, granting an interm order that the husband not
molest the wife or accost her or put her into a state of fear or
alarm, etcetera, and restraining the husband from removing or
attempting to remove the child from the custody of the wife or
from the jurisdiction of the Court.
On 12 September 1986 the husband wrote a letter in which he
said, and I quote:
“I have decided not to go for custody of my son Lee on
the agreement that my wife will allow me fair and
mutually convenient access. It is a decision I regret;
however I find the thought of not seeing him on a
regular basis at present unbearable and are willing to
sacrifice going for custody for the chance to spend as
much time with him as possible.”
On 1 October 1986 Lord Clyde, Lord Ordinary for the Court of
Session of Scotland, by consent, granted interim custody of the
child to the mother; interim access to the father from 10.00 a.m.
Friday to 6.00 p.m. Saturday on one weekend and 10.00 a.m.
Saturday to 6.00 p.m. Sunday on the alternate weekend. No order
for maintenance was made. I will not endeavour to translate the
rest of the order because I have not the faintest idea of what the
phrase “of new sists the cause” means. The matter has been
languishing in the lists in Scotland, perhaps through the state of
business of the Court or through lack of desire of the lawyers to
move it along, I do not know what. The husband, not happy with
the situation in Scotland, made enquiries it would appear, from
some Scottish lawyers and was wrongly advised that if he brought
the child to Australia the wife could do nothing about it. He
said he also made some enquiries via his parents of a lawyer in
Heathcote, Victoria, who gave similar poor advice.
A reading by either of those practitioners of the most basic
authorities of this Court would have indicated it was sadly wrong
advice. It had been well settled by the Privy Council in the case
of McKee v. McKee (1951) A.C.352 and by the High Court in Kades
and Kades (1962) 35 A.L.J.R. 251, by this Court in Khamis and
Khamis (1978) FLC 90-486, in Schwartz and Schwartz (1985) FLC
91-618 and many other authorities and by the Court of Appeal in Re
R.(Minors) (1981) 2 Fam. L.R. (Eng. Series) 416, that the Courts
generally will not tolerate the wrongful removal of children from
one corner of the earth to the other, and whilst a Court may seize
on to jurisdiction by reason of the physical presence of the child
or some other aspect that is relevant to its welfare, there is no
certainty that the Court will do so.
The three options open to a Court were investigated
in detail in the decision of Wade v. Firns (1981) FLC 91-106.
Needham J. of the Supreme Court of New South Wales applying common
law, indicated the Court could choose one of three approaches.
Firstly, it could summarily send the child back; secondly, it
could investigate whether it should summarily send the child back
by some mini-investigation and hearing from both sides; thirdly,
it could hold on to the child and retain jurisdiction.
Occasionally this is done (see B. v. B. (Kidnapping) 1986 FLC
91-749).
Section 68 of the Family Law Act (which unfortunately in its
actual operation applies only to New Zealand and Papua New Guinea)
provides effectively that a foreign custody order has to be
enforced unless there is a consent to Australia exercising
jurisdiction, unless:
“(3)(b) the court is satisfied that there are
substantial grounds for believing that the welfare of
the child will be adversely affected if the court does
not exercise jurisdiction in the proceedings.”
Section 68 does not of itself apply to interim orders (see
s.68(7),) but it was made abundantly clear in Khamis’ case that
the spirit of s.68 should apply in international kidnapping cases
irrespective of whether they are between convention countries or
otherwise, and irrespective of the nature of the order whether by
way of interim custody or otherwise. So, even if this application
were not being brought under the convention, Mr Lambert would most
probably have found the child being forthwith removed back to
Scotland. I cannot say on the evidence raised that within the
meaning of s.68, I have been satisfied that there were substantial
grounds for believing that the welfare of the child would be
affected if the overseas custody order was left in operation.
Regulation 16 provides a much more stringent test, in my
view, than s.68. I must be satisfied that there is a “a grave risk
that the child’s return to the applicant would expose the child to
physical or psychological harm”.
The husband has given viva voce evidence and sworn an
affidavit. He says the wife lives with her parents and her father
drinks too much and her father used to belt her. In 1982 the
police were around at the house and whilst the husband has
convictions for drunkeness and disorder himself, the wife drinks
too much and he knows of at least two occasions when she was drunk
when he brought the child back to him for access. She has a
boyfriend; he is unemployed and he is drunk all the time; and he
has a reputation as being a fighter and a trouble-maker. For all
of that, the husband’s father gave some evidence and the little
boy he saw brought to Australia some four weeks ago, is a fine
little boy getting on very nicely indeed, thank you, and no small
tribute to the “drunken” mother and “drunken” grandfather. It may
be that there is substance in the husband’s claim that he is a
better custodian than the mother, but that is in my view, a matter
for the Scottish court to determine and not for this Court. WMH-FN
3
The welfare of this child, being the paramount consideration
in the operation of all powers that I exercise in respect of the
child, demands that the child be forthwith returned to the mother
and that any further issues relating to the determination of who
is the more appropriate parent inrespect of this child, be
determined by the Court in Scotland.
The orders of the Court are:
(1) That the child, Leigh Lambert be immediately returned to
the custody of Linda Kerr Lambert and that she be at liberty
to forthwith remove the said child from Australia.
(2) Until the said child is returned to his mother’s custody
paragraphs 1, 2 and 4 of the orders made on 26 March 1987, to
remain in force.
(3) I order that the husband’s consent to the execution of
any necessary travel documents for the said child be
dispensed with. WMH-FN4 The husband to pay the wife’s costs
of travel and return fixed at $3,631, and I certify. WMH FN 5
I might add that Mrs Winneke has made submissions on behalf
of the husband as strongly as is possible in the circumstances.
The Convention is clear. In my view, the exceptions to it are
likely to be few and far between and this case clearly is not one
that falls within it. I am not satisfied that it will be a grave
risk to the child if he is returned to the wife. Even if there was
such a risk, given the circumstances of the removal of this child
on 5 March 1987 when he was surreptitiously brought to Australia,
I would have exercised my discretion adversely to the abductor.
WMH-FN6
Annexed hereto for completeness are the ex parte orders I
made on the first return of the application.
APPENDIX I
Ex Parte Order of 26 Mar 1987
This Ex-Parte Application coming on before this Court AND
UPON HEARING, Mr. Meehan for the applicant and there being no
appearance for the husband or the wife, IT IS ORDERED:
(1) That until further order the husband ROGER ALAN LAMBERT
surrender forthwith to the Registrar of Melbourne
Registry of the Family Court of Australia all current
passports relating to himself and the child of the
marriage LEE LAMBERT born at Edinburgh, Scotland on the
11th day of December 1983.
(2) That until further order the said ROGER ALAN LAMBERT is
hereby restrained from removing the said child from the
Commonwealth of Australia AND IT IS REQUESTED that the
Marshal of the Family Court of Australia at Melbourne and
all officers of the Australian Federal Police and the
Department of of Immigration and Ethnic Affairs give
effect to this order AND IT IS DIRECTED that the
applicants solicitor serve a sealed copy of this order on
the said Australian Federal Police and the said
Department of Immigration and Ethnic Affairs.
(3) That a warrant issue authorising and directing the
Marshal, all officers of the Australian Federal Police
and all officers of the Police Forces of all the States
and Territories of the Commonwealth of Australia to take
possession of the said child and deliver the said child
to the Director General, Department of Community
Services, Victoria.
(4) That until further order the said child be placed in the
custody of the said Director General, Department of
Community Services, Victoria or such other person as the
said Director General shall direct.
(5) That as soon as practicable the said ROGER ALAN LAMBERT
be served with a sealed copy of the following documents:
(a) the application of PETER JOHNSTONE, Director
General of the said Department of Community
Services, Victoria and annexures thereto;
(b) this order.
(6) That a sealed copy of the following documents:
(a) the said application without annexures;
(b) this order;
be served upon the following:
(a) the Commissioner of the said Australian Federal
Police;
(b) the Secretary of the said Department of
Immigration and Ethnic Affairs;
(c) the British High Commissioner;
(d) the Department of Foreign Affairs.
IT IS DIRECTED
(7) That the photographs on the Court file be released to the
Australian Federal Police.
IT IS FURTHER ORDERED:
(8) That the further hearing of the said application be
listed before this Court at 10:00 a.m. on Friday the 3rd
day of April 1987.
(9) That general liberty for any party to apply upon short
notice be reserved.
BY THE COURT
[Illegible Signature]
DEPUTY REGISTRAR
APPENDIX II
[CAC reg 15] Orders
15 (1) The responsible Central Authority may, in relation to a
child removed to Australia, apply to a court having jurisdiction
under the Act for —
(a) an order for the issue of a warrant for the apprehension or
detention of the child;
(b) an order directing that the child not be removed from a
place specified in the order;
(c) an order requiring such arrangements to be made as are
necessary for the purpose of placing the child with an
appropriate person, institution or other body in order to secure
the welfare of the child pending the determination of an
application under regulation 13; or
(d) an order for the return of the child to the applicant.
(2) A court may, in respect of an application made under
sub-regulation (1), make an order of the kind referred to in that
sub-regulation and such other order as the court thinks fit.
(3) Where under sub-regulation (2) a court makes an order in
relation to the removal of a child from a place specifried in the
order, the court may impose such conditions on the removal of the
child from that place as the court thinks fit.
(4) An application under sub-regulation (1) shall be in
accordance with Form 2 in Schedule 3.
[CAC reg 16] Orders for the return of children
16 (1) Subject to sub-regulation (3), a court shall order the
return of a child pursuant to an application made under
sub-regulation 15(1) if the day on which that application was
filed is a date less than one year after the date of the removal
of the child to Australia.
(2) Subject to sub-regulation (3), a court shall order the return
of a child pursuant to an application for an order of the kind
referred to in paragraph 15(1)(d) if the date on which that
application was filed is a date that is at least one year after
the date of the removal of the child, unless it is satisfied that
the child is settled in its new environment.
(3) A court may refuse to make an order under sub-regulation (1)
or (2) if it is satisfied that-
(a) the person, institution or other body having thecare of the
child in the convention country from which the child was removed
was not exercising rights of custody at the time of the removal
of the child and those rights would not have been exercised if
the child had not been removed, or had consented to or acquiesced
in the child’s removal;
(b) there is a grave risk that the child’s return to the
applicant would expose the child to physical or psychological
harm or otherwise place the child in an intolerable situation;
(c) the child objects to being returned and has attained an age
anddegree of maturity at which it is appropriate to take account
of the child’s views; or
(d) the return of the child would not be permitted by the
fundamental principles of Australia relating to the protection of
human rights and fundamental freedoms.
(4) For the purposes of sub-regulation (3), the court may take
into account such information relating to the social background
of the child as may be provided by the Central Authority of the
convention country from which the child was removed.
(5) A court may stay or dismiss an application for an
order of the kind referred to in paragraph 15(1)(d) in relation
to a child if it is satisfied that the child is no longer in
Australia.
Note: These footnotes were created by Wm. M. Hilton and are not
in the original decison.
——————–
1. The full text of Regulation 15 is set out in APPENDIX II
2. The full text of Regulation 16 is set out in APPENDIX II
3. The Court’s reasoning, that the place where the alleged
improper behavior took place is presumptively the best place
to conduct a hearing on these allegations, has been
articulated in cases under the Uniform Child Custody
Jurisdiction Act (UCCJA). See, eg, Plas v Superior
Court(1984) 155 Cal.App.3d 1008, 1021 [202 Cal.Rptr.490, 497];
Metcalf v Turner (A.D. 3 Dept. 1989) 546 N.Y.S.2d 466, 467-468
and Flesner v Houser (Ill.App. 1982) 104 Ill. App. 3d 904
[433 N.E.2d 720; 60 Ill. Dec. 678] as typical examples of this
analysis.
4. This order should be made a part of any return order.
5. See Article 26 of The Convention (discretionary) and 42 USC
11607(b)(3) (mandatory).
6. The court could have, had it felt that the return of the child
to the mother would be contra-indicated, ordered that the
child be returned to Scotland in care of, say the Social
Welfare agency there or in the care of a relative, e.g.,
grandparent. See Zimmerman vs Zimmerman No. 91-14556-S,
District Court of Dallas County, Texas (18 Oct 91) for an
example of this. [ZMRMAN.TX] An order that may also be used
is set out in the sample order entitled ORDER, JUDGMENT AND
DECREE RE: INTERIM CARE AND CUSTODY OF THE MINOR CHILD, a
“Safe Harbor” order. [SAFEHBR.ORD]