AUSTRALIA – LEIGH – 1994

AUSTRALIA – LEIGH – 1994 (1994) (Removal was wrongful) LEIGH v UNDERWOOD. Mother took the children to USA. Husband applied to the Australian Court for a judgment that the removal from Australia was wrongful. The Judge issued an order that the removal was indeed wrongful. There was no appearance for the mother in court. The courts of the USA would handle return.

Leigh v Underwood (Australia 1994)Melbourne ML 5074 of 1993
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LEIGH v UNDERWOOD
AND
DEPARTMENT OF HEALTH AND COMMUNITY SERVICES
AND
DIRECTOR OF LEGAL AID

JUDGE: Hase J

DATE OF JUDGMENT: 17 June 1994

CATCHWORDS:

FAMILYLAW- CHILD ABDUCTION- Hague Convention of
the Civil Aspects of International Child
Abduction – Declaration of wrongful removal –
Article 15 of the Convention – Regulation 17(1)
of the Australian Regulations.

This was an application by the Victorian Central Authority (the
Department of Health and Community Services) for a declaration
pursuant to Reg. 17(1) of the Family Law (Child Abduction
Convention) Regulations tart. 15 of the Hague Convention] that the
removal of the children was wrongful within the meaning of Article
3 of the Convention.

An explosive device had been found in the luggage of the children
when they were returned by the father after an access period. The
mother was given interim sole custody, and the father was
convicted of possessing a prohibited weapon and sentenced to a
minimum of 3 years in jail. However, this conviction was quashed
on appeal and the husband released from prison.

During the short period the husband was incarcerated, the wife
applied for a passport for herself and the two children of the
marriage without the husband’s consent, stating in her application
that the husband was in jail for placing a bomb in the children’s
luggage and that she wanted to be able to leave Australia should
the need apse. The passports were issued and shortly after the
husband’s release from prison, the wife and the two children left
Australia.

The husband sought an order invoking the Hague Convention after
the wife failed to attend the hearings regarding the determination
of custody of and access to the parties’ two children. The
Victorian Central Authority applied to this Court for a
declaration.

HELD:
1. That the power to make a declaration under Reg. 17(1) is
discretionary.

2. That there had been a wrongful removal within the meaning
of Article 3(a);

(i) That under s.63F of the Family Law Act the husband
was a joint guardian of the children, and as such
he had the right to jointly determine the
children’s place of residence. This was breached
by the wife within the meaning of Article 3(a).
(ii) That at the time of removal, the husband was
actually exercising his rights of joint
guardianship within the meaning of Article 3(b),
as there were proceedings between the husband and
wife on foot for the final determination of the
custody and access of the children.

3. That after considering all the circumstances, including
that if the children were to
be returned they would be placed in temporary, suitable
foster care pending a final decision of the Court, the
Court would exercise its discretion in favour of making a
declaration that the removal was wrongful.

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FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA (JSLEIGH4)
AT MELBOURNE NO. ML 5074 of 1993

IN THE MATTER OF:

ALAN ROBERT LEIGH (Husband)
and
MARYANNE UNDERWOOD (Wife)
and
JOHN PRYDE PATERSON
SECRETARY, DEPARTMENT OF HEALTH AND COMMUNITY SERVICE
STATE CENTRAL AUTHORITY (Applicant)
and
THE DIRECTOR OF LEGAL AID
(Separate Representative)

EX-TEMPORE JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE HASE

DATE OF HEARING: 14, 15, 16 & 17 June 1994
DATE OF JUDGMENT: 17 June 1994

Appearances: Ms Bennett of Counsel instructed by Mr Ronald C
Bentley, Victorian Government Solicitor, DX 30,
Melbourne, appeared on behalf of the applicant.

Mr Hammet of Counsel instructed by
Messrs Acquaro & Co., Solicitors,
38-40 Byron Street, Footscray, Victoria, 3011,
appeared on behalf of the husband.

Mr Atkinson of Counsel instructed by the Director
of Legal Aid, Legal Aid Commission, DX 228,
Melbourne, Victoria, appeared on behalf of the
separate representative.

There was no appearance for the wife.

HIS HONOUR: Alan Robert Leigh, whom I shall call “the husband”,
and Maryanne Underwood, whom I shall call “the wife”, were
married on 13 March 1983 in New South Wales.

The husband was born in Melbourne on 25 January 1958 and the wife
was born in Sydney on 1 June 1962.

In 1977, the husband purported to change hi. surname from
Polglase to Leigh but he still holds a passport under the name of
Polglase.

There are two children of the marriage Kristel Katrina Leigh born
30 August 1984 and Tamara Stacey Leigh born 15 February 1986.
I have heard an application pursuant to Reg. 17(1) of the Family
Law (Child Abduction Conventions Regulations 1986 hereinafter
called lithe Regulations”, for a declaration “that the removal of
the children by the wife from Australia on or about 1 March 1993
was wrongful within the meaning of Article 3 of the Convention on
the Civil Aspects of International Abduction (hereinafter called
‘the Hague Convention’)..

On 1 January 1987, the Hague Convention commenced to operate in
Australia and on 1 July 1988, the United States of America became
a signatory to the Hague Convention.

On 27 April 1990, the husband and wife separated, when the wife
retained care of the children in New South Wales. On 10 September
1990, the wife instituted ex parse proceedings in the Parramatta
Registry for the return of the children and on 12 September 1990,
the Australian Federal Police executed a warrant for the return
of the children to the wife.

On 20 September 1990, the husband filed an application in the
Family Court of Australia seeking, Inter alia, custody of the
children.

On 26 September 1990, orders made by the Family Court of
Australia provided that the wife was to have interim custody of
the two children and the husband have access which was
stipulated.

On 31 December 1990, an explosive device (similar to a booby
trap) was discovered in the children’s luggage when they went
with the husband and his de facto at access time. The explosive
device would operate if the pin of the safety pin were opened and
then became caught on clothing or in some other way. The device
would kill within a metre and maim any person within 10 metres.

On 22 January 1991, the husband last saw the two children.

On 23 January 1991, the husband filed an urgent application at
the Parramatta Registry of this Court seeking a custody order and
alleging that the wife was responsible for the explosive device.

On 25 January 1991, after a three day hearing Rourke J granted
the wife leave to make an oral application to suspend access. He
then dismissed the husband’s application for interim custody and
made an order that pending further order of the Court, the
husband have no access to the two children. Rourke J found that
there was an unacceptable risk of injury if the children were in
contact with the husband.

On 18 May 1991, the husband was charged with charges ; relating
to the possession of a prohibited weapon and he was remanded in
custody in New South Wales where he remained until 17 February
1993.

On 4 July 1991, a decree nisi was granted for a dissolution of
the marriage.

On 23 September 1991, the husband was convicted of possessing a
prohibited weapon and was acquitted of the charge of attempting
to use a prohibited explosive device.

On 22 November 1991, the husband was sentenced to a minimum term
of three years’ imprisonment to commence on 16 May 1991, and to
expire on 15 May 1994. He received an additional term of one year
to commence on 16 May 1994 and expire on 15 May 1995.

On 21 April 1992, the wife made an application to the
Commonwealth Department of Foreign Affairs and Trade for a
passport for herself and the two children. She swore a statutory
declaration in which, inter alia, she declared:

“I have not attempted to gain consent of my
ex-husband because he is currently in gaol
for placing a bomb in my children’s overnight
bag to gain custody of the children. If my
husband does got out earlier, I want the
freedom to flee overseas if need be.”

In due course, the passports were issued without notice to, or
consent, of the husband.

On 13 August 1992, the wife filed an application that she have
sole guardianship and custody of the children and that the
husband have no access.

On 5 September 1992, the wife married Peter John Underwood.

On 19 November 1992 and on 2 December 1992, gaol orders were made
by the Family Court of Australia at Parramatta for attendance of
the husband at Court on 27 November 1992 and 3 March 1993.

On 17 February 1993, the Court of Criminal Appeal of New South
Wales set aside the conviction of the husband for possession of
the prohibited weapon and made an order for a new trial. The Full
Court made it clear that the fact that the order which was to be
made should not be regarded as a direction to the prosecuting
authorities to place the appellant on trial again. They stressed
it was a matter entirely for the authorities whether he was put
on trial once more.

A decision was made by the Director of Public Prosecutions of New
South Wales that the husband will not be tried again on the
charge.

The husband was released from prison.

On 1 March 1993, the wife left Australia with the two children.

The wife did not attend a pre-hearing conference at the
Parramatta Registry of the Family Court of Australia on 3 March
1993. On 29 March 1993, the husband filed an application seeking
access to the children.

On 28 April 1993, an order was made by this Court relating to
service of the proceedings. On 6 May 1993, an ex parte order was
made by this Court restraining the husband and wife from removing
the children from Australia.

On 26 May 1993, the husband filed six applications and thereafter
the husband has been very active in filing applications and in
attending this Court and many orders have been made.

On 23 November 1993, inter alia, an order was made that the
children be separately represented.

The husband on 15 December 1993, sought an order invoking the
Hague Convention and on 20 April 1994, the husband completed an
application in accordance with the Rogue Convention for the
return of the children.

On 26 April 1994, the husband filed applications relating to the
wife acting in breach of the Family Law Act and in contempt of
this Court.

Pursuant to the Hague Convention the State Central Authority, who
is the Secretary, Department of Health and Community Services for
the State of Victoria applied for a declaration pursuant to Reg.
17(1) of the Regulations that the removal from Australia by the
wife of the children was wrongful within the meaning of Article 3
of the Hague Convention.

Ms Bennett of Counsel appeared for the State Central Authority,
Mr Hammet of Counsel appeared for the husband and Mr Atkinson of
Counsel appeared for the separate representative for the
children.

The State Central Authority, the husband and the separate
representative argued that I should make a declaration and
stressed that any decision with regard to the return of the
children would be made by the court in the United States of
America after considering all relevant matters which arise under
the Convention, because the children have been in the United
States of America for more than 12 months .

I am satisfied that the power to make a declaration under Reg.
17(1) is discretionary. See s. 33 of the Commonwealth Acts
Interpretation Act 1901, and the discussion in “Statutory
Interpretation in Australia” 3rd Ed., D.C. Pearce and R.S. Geddes
and the decision of Sillars v Sillars 1986 FLY 91,756 and the
many other authorities which are referred to in that decision.

At the time when the wife took the children out of Australia on 1
March 1993, the husband had no access rights to the children, but
as a result of s. 63F of the Family Law Act he was a joint
guardian of the children.

As a result of being a Joint guardian pursuant to s. 63E of the
Family Law Act, he had, in my view, Joint responsibility for the
long-term welfare of the children.

It is clear under the Family Law Act that the wife, pursuant to
a. 63E of the Family Law Act, in addition to being a joint
guardian, also had the right to have the daily care and control
of the children and the right and responsibility to make
decisions concerning the daily care and control of the children
as a result of the interim order of Rourke J that the wife have
interim sole custody of the children.

I am satisfied that whilst there was no order restraining either
party from taking the children outside Australia, the wife’s
action in taking the children out of Australia in the
circumstances was in breach of the joint right of the husband to
determine the children’s place of residence.

I am satisfied at the time when the children were taken by the
wife, the husband was exercising his rights as a Joint guardian
because he and wife were engaged in proceedings in the Parramatta
Registry of the Family Court of Australia relating to the custody
and guardianship of the children.

It is also alleged that the removal was contrary to s. 70A of the
Family Law Act because there was an order in force with respect
to the custody, guardianship or access to for the children to be
placed in temporary, suitable foster care pending a final
decision of the Court in relation to the children.

However, there is no evidence as to the effect on the children of
their being returned to this country in the circumstances of this
case. On balance, I shall exercise my discretion in favour of
making a declaration.

I am satisfied that the removal of the children was wrongful
pursuant to Article 3 of the Hague Convention because the actions
of the wife were in breach of the husband’s right to determine
the child’s place of residence which is described as a right of
custody and which he held as a result of being a Joint guardian
of the children.

The orders I make are as follows.

IT IS DECLARED

(1) That pursuant to Reg. 17(1) of the Family Law (Child
Abduction Convention) Regulations 1986, that the
removal on or about 1 March 1993, by the wife, Maryanne
Underwood, of the children of the marriage, namely
Kristel Katrina Leigh, born on 30 August 1984, and
Tamara Stacey Leigh, born on 15 February 1986, was
wrongful within the meaning of Article 3 of the
Convention on the Civil Aspects of International Child
Abduction.

(2) I certify for the attendance of counsel.

RECORDED : NOT TRANSCRIBED

HIS HONOUR: The husband, who is on legal aid, has made an
application that his costs be reserved. In my view, this matter
has a long and complicated history, and it would be quite
inappropriate for me to reserve the costs for some other judge to
decide. It is possible, in my view, that this case will become
even more complicated, and it is not the sort of case which can
be easily understood by some person or judge who has had no
contact with it. Amongst the many applications which the husband
has filed this application in fact has resulted in a declaration
being made. It was sought by the State Central Authority at the
request of the father.

It was not a matter of concern to me that he did appear. However,
amongst other problems which the husband faced was the unreported
decision of the Full Court in the case of Retina, 22 May 1991,
which indicated that the application was to be made by the
Central Authority and not by the parent. It is not clear to me
really as to why the husband is present, nor is represented in
these proceedings. However, I was content to allow the husband to
appear and did not wish to deny him the right.

In my view, this is the type of case where the costs should be
borne by each party. It is difficult to know at this stage as to
whether it could be said that these proceedings relate to the
welfare of the children or relate to an unfortunate state of
hostility between the parents.

In my view, for the sake of the children, it would be quite
inappropriate to add to their problems the question of one parent
paying costs to the other parent. In my view it would not be just
and equitable to make an order for costs and therefore, in my
view, there is no point in reserving the cost. There will be no
order for costs.