Director General et al and M.S. (Australia 1998)Family Court of Australia at Sydney No SY8917 of 1997
19 International Abduction [Australia 1998]
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FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
No. SY8917 of 1997
BETWEEN:
DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES
(Applicant/Central Authority)
– and –
M. S. (Respondent Mother)
REASONS FOR JUDGMENT
BEFORE: JUSTICE J.M.H. MAXWELL
HEARD: 25 SEPTEMBER 1998
JUDGMENT: 15 OCTOBER 1998
APPEARANCES:
Mr O’Brien of Counsel, instructed by Crown Solicitor’s
Office, Sydney, appeared on behalf of the applicant/Central
Authority.
Mr Anderson of Counsel, instructed by Patrick Grimes & Co.,
Solicitors of Lane Cove, appeared on behalf of the
respondent/mother.
001 These proceedings under the Family Law (Child
Abduction Convention) Regulations (Hague Convention
proceedings) were commenced by the Responsible Authority,
the Director-General of the Department of Community
Services, by her Delegate, by an application filed on 14
August 1998.
002 The proceedings were transferred to my list during the
course of Friday 25 September 1998 and in circumstances
where voluminous material had to be read after submissions
were heard on behalf of the Central Authority and the
Respondent wife, I reserved my decision. Unfortunately the
decision has been delayed in circumstances where I was then
away in another registry for the ensuing week and because of
pressure of other listed cases since my return.
003 The orders sought by the Central Authority in that
application are set out in Attachment “A” in these Reasons.
004 On 2 September 1998 on an earlier listing of the
matter, orders were made in terms of paragraphs 1 and 4 of
that application.
005 On a prior occasion, 18 August 1998, an order was made
placing the subject children on the airport watch list as
sought in paragraph 5 of the subject application.
006 It is asserted on the part of the Authority that:
o the habitual residence of the subject children prior to
their removal to Australia was Austria;
o that the father the applicant under the Convention has
rights of custody in relation to the children;
o that the children were removed from Austria by the
respondent mother on or about 16 August 1997.
007 In a cross-application filed 15 September 1998 the
respondent mother seeks dismissal of the Central Authority’s
application and an order for costs.
008 In her Answer of the same date she asserts that:
o the habitual residence of the children is Australia,
not Austria;
o that the father was not actually exercising rights of
custody when the children returned to Australia and
that those rights would not have been exercised if the
children had not returned to Australia;
o that since April 1997 the children have lived with
their mother solely and with the father’s consent, and
that the mother has the benefit of a custody order
under Austrian law;
o that the father has consented or acquiesced in the
children being and remaining in Australia by reason of
the fact that he has been aware of custody proceedings
commenced in Australia by the mother since about
October 1997 and consented to the jurisdiction of the
Family Court;
o that he had been legally represented in those
proceedings (a Notice of Ceasing to Act was filed on
10 September 1998) and that those proceedings have
been set down for hearing; ? that there is a grave
risk that the return of the children to Austria would
expose the children to physical or psychological harm
or would otherwise place the children in an
intolerable situation;
o that the children object to being returned to Austria
and that the two oldest children have reached an age
and degree of maturity at which it is appropriate to
take account of their wishes.
009 In relation to this latter contention there was no
evidence on that issue in a form discussed as appropriate in
De L v Director General, NSW Department of Community
Services & Anor (1996) FLC 92-706 circa 83,455.
010 In any event for reasons I refer to later I do not
consider it necessary to consider the point in depth, I
would have some di’iculty being persuaded that the children
the subject of these proceedings have attained su’icient
maturity to understand the concept of “objection” as
discussed in the authorities.
011 It was also contended for the respondent mother that
for the purpose of determining this application this Court
should have regard to the Social Report prepared by order of
the Austrian Court.
012 The background to the matter is as follows.
013 The mother, born in Australia on 18 May 1956, met the
husband, born in Austria on 10 June 1962, in Australia in
1988.
013 She asserts in her evidence that she was informed at
that time by the husband, who was then employed at
Warriewood, that he had recently become a permanent resident
of Australia.
014 The parties subsequently travelled to Austria where
they married on 29 May 1989.
015 They returned to Australia some three months later to
live.
016 At the time of marriage and for a time thereafter they
resided in a home unit owned by the wife at Drummoyne.
017 That home unit was sold and in 1991 with the
assistance of funds advanced by the wife’s parents they
acquired in joint names a property at Cormack Road, Beacon
Hill.
018 That property remains in the ownership of the parties
and is the subject of contested proceedings in this Court.
019 There are three children of the marriage and the focus
of these proceedings: twins Franz and Christian born 1 June
1991 and Sebastian Stefan born 9 July 1993.
020 In May 1994 the husband’s father died in Austria and
the husband travelled to Austria for a short period
thereafter. The wife asserts that there were di’iculties in
the marriage at or about that stage.
021 The evidence seems to suggest that the husband
acquired a half interest in a house and adjoining nursery
premises as a result of his father’s death.
022 The wife asserts that following the husband’s return
from Austria following his father’s death, the relationship
between them deteriorated.
023 The wife also asserts that in late 1994 the husband
suggested that they should go to Austria “to see how the
nursery was going” and that he said words to the effect, “It
will only be temporary – maximum 18 months. If you don’t
like it we can come back here at any time.”
024 The parties left Australia in May 1995 with each child
on the husband’s passport, the mother says at his
“insistence”.
025 The wife organised for the matrimonial home at Beacon
Hill to be rented and items of furniture, electrical items,
personal items and wedding presents were stored under the
house, the wife says, in circumstances where the husband
refused to agree to place the items in storage. Some other
personal items were stored at the wife’s parents.
026 The wife asserts that “only the most basic items
including clothing for the children and a few toys” were
forwarded to Austria, although she says the husband “took
most of his valuable personal items including his stereo
system.”
027 The wife’s car was lent to a nephew.
028 The wife asserts that the marriage further
deteriorated in Austria where they were living in the house
formerly occupied by the husband’s father which the wife
asserted was neglected and in need of repair. She alleges
that she and the children were isolated and that her ability
to communicate in German was extremely limited and as a
consequence her access to facilities and assistance also
very limited.
029 She also claims both in her affidavit material in this
application and had complained in the proceedings in the
Austrian Court, about interference in her domestic situation
by her mother-in-law and sister-in-law. Clearly
relationships between the wife and the husband’s family were
extremely poor as indicated by the evidence of all
concerned, but particularly by the husband’s mother and
sister in the Austrian proceedings.
030 Details of her allegations in this respect and the
various difficulties are also set out at length in her
affidavit material in these proceedings.
031 The husband and his family asserted in the Austrian
proceedings that it was the wife’s damage to the property
and inadequate housekeeping which were the reason for any
difficulties with their accommodation.
032 The wife sets out in considerable detail the
difficulties about the accommodation and even allowing for
some element of embellishment I accept that the condition of
the residential premises was less than satisfactory.
033 The wife asserted in her affidavit material that she
continually questioned the husband’s undertaking
improvements to the nursery in circumstances where they
would be returning to Australia.
034 It is also asserted by the wife that the house and
nursery have now been transferred into the husband’s
sister’s name although little ultimately turns on this for
the purpose of the subject application.
035 The wife commenced divorce proceedings in Austria in
December 1996 following an incident in the home on or about
12 December 1996 which led to the issue of proceedings by
the police.
036 The parties attended Court in relation to the divorce
proceedings on 24 December 1996 and ultimately the wife did
not pursue the proceedings in circumstances where the
husband said he wished to remain married for the sake of the
children.
037 The wife asserts that following this, circumstances in
the household deteriorated further and she returned to
Australia for a month’s holiday in January 1997 at her
father’s expense bringing the child Sebastian. She says
that the husband refused to allow the twins to travel with
them and insisted that the child Sebastian travel on an
Austrian passport.
038 The wife asserts that following their return to
Austria the situation between them further deteriorated and
describes the difficulties in her affidavit, particularly
paragraph 49 and following. She filed a divorce application
on 17 February 1997 which appears to be the day following
her return.
039 The first hearing of the divorce occurred on 13 March
1997 whilst the parties were still residing under the one
roof and a translated copy of the Protocol was attached to
her material.
040 A number of incidents which occurred involving the
children are described in the affidavit material and the
various protocols, include incidents where the children were
clearly involved in incidents relating to them and which
also involved their paternal grandmother.
041 There were also a number of incidents in this period
when the police were called.
042 The wife says that her divorce application was again
before the Court on 25 March 1997 and that she believed that
an order was sought on her behalf that she have sole
occupation of the home.
043 However the Court apparently declined to require that
the husband vacate the residence which was attached to his
business premises. The wife declined to vacate the premises
without the children because of her concerns for the care of
the children, although she had by that stage found premises
to which to move.
044 Whilst these proceedings were going on the husband
reported the wife to various authorities for allegedly
physically abusing the children which on one occasion
involved the children being physically examined at their
kindergarten.
045 At or about this time the husband was ordered to pay
$100 per week alimony for the wife and the amount the wife
was receiving as rental income on the Australian property
was to cover child maintenance.
046 When the matter again came before the Court on 9 April
1997 in circumstances where the situation in the home was
clearly highly conflictual and the children squarely in the
middle of the conflict, the wife sought an order to move out
of the former matrimonial home and take the children with
her.
047 It appears from the protocol of that date that later
there were directions for settlement discussions and
subsequently the Court noted:
“In the light of the declared intention of the
plaintiff (the wife) to leave the family
house/apartment both parties agree, out of court
and without prejudice to their legal positions
with regard to the children of the marriage, to
co-operatively want to pursue the following
action:
For the duration of the divorce proceedings and
the care proceedings, that were not yet
initiated but immediately imminent, the
temporary care be assigned to the mother of the
children so that the children can live
unseparated with their mother.
As the father of the children, according to his
representation, has only a small income should
hand over to the mother of the children a
maintenance amount of a total of S 3,500.- for
all three children based on 14% each for the
twins and 12% on the first day of the month
after the date of the move and then subsequent
payments monthly in advance. Here the plaintiff
gives the defendant permission not to have to
pay the child maintenance amount in cash and
declares
herself prepared to use the amount of
approximately S 5,000.00, being half the rent
income arising from a house in Australia up to
the amount of S 3,500.- for child maintenance.
The defendant authorises the plaintiff to draw
on the half of the rental income from the house
in Australia owing to him up to the monthly
amount of S 3,500.- limited to the duration of
the divorce and care proceedings for maintenance
purposes with respect to the children. Both
parties know that care proceedings cannot be
initiated at this time due to the existence of a
family household.
In recognition of a provisional visitation right
for the same time extension (divorce and care
proceedings) both parties intend to want to
allow decisive significance to the desires of
the children and to make it possible that the
children can stay overnight with the father
according to their needs and wishes.
Both parties declare that in recognition of the
children they intend to apply for sole care of
all the children. In this regard the plaintiff
declares that she intends to remain in Austria
in the long term and to be domiciled here. The
defendant declares, for his part, that he would
not think of
resettling in Australia in the next few years
for occupational reasons. Both parties admit as
correct that the twins, Franz and Christian, are
included in the passport of the father whereas
Sebastian possesses his own passport that is in
the custody of the plaintiff.
In the event of the divorce, both parties state
their standpoints precisely as follows in the
light of the legal consequences of the divorce
for their assets:
1.) (Maintenance) The defendant waives
maintenance from the plaintiff; the plaintiff
desires maintenance; the defendant is prepared
if need be to provide maximum maintenance for a
limited duration if conditions are fulfilled.
2.) (Family house/apartment) This is located
in Ternitz, Forstnerweg 13 is in half ownership
of the defendant and his sister; the plaintiff
places no value on the family house/apartment
whereas the defendant strives to attain sole
rights to it. The chattels in the family
house/apartment, with the exception of the
nursery furnishings, should be transferred to
the sole ownership of the defendant according to
the wishes of the plaintiff. Both parties admit
as correct that there exist neither joint
savings nor liabilities; the defendant points
out that all liabilities that affect him are
business liabilities and that he is liable for a
re- development loan also concerning the family
house/apartment together with his sister – with
whom he is half owner of the real estate on
which the family house/apartment is located.
Both parties are half owners of a property with
a house in Australia at the address 36 Cormack
Road, Beacon Hill 2100; the plaintiff declares
she is trying for ownership of the entire
property whereas the defendant declares that he
wants to sell his half of the ownership right in
this house in Australia.”
048 The matter was again before the court on 14 May 1997
in relation to care/custody matters and in particular in
relation to allegations by the father of mistreatment of the
children by their mother and the protocol of that date
notes:
“After receiving an explanation of the law – the
children’s mother in particular is clarified
about the provisional nature of the visitation
rights – the parents of children agree to the
settlement
1. The children’s father receives visiting
rights to his children, Franz, born on 1.5.1991,
Christian, born on 1.5.1991 and Sebastian, born
on 9.7.1993 such that he is entitled to pick the
children up every Sunday at 09.00 and is obliged
to hand over the children at 17.00 h on the same
day at the house of the children’s mother to her
or to a person appointed by her; the children’s
father is entitled to exercise an overnight
visitation right with respect to his children on
every second weekend in the month, that he is
entitled to pick the children up at the house of
the children’s mother on Saturday at 14.00 h and
is obliged to
return the children on the following Sunday at
17.00 h at the house of the children’s mother to
her or to a person appointed by her; the
children’s mother is obliged to have the
children ready clothed in keeping with the
weather and ready to go out, she is entitled to
assume that the father has waived his visiting
right in its entirety without a substitute
arrangement in case he does not enter into his
visitation right within 30 minutes.
2. This provisional visitation right is time
limited until the coming in force of the
care/custody decision.”
049 The matter was again before the Court on 16 July 1997
when depositions were taken, inter alia, from the husband’s
mother Anneliese Forstner and sister Gerlinde Danihel, and a
witness for the wife a Brigitte Kroffl.
050 It is clear from a reading of that evidence that the
husband’s family are most critical of and antagonistic
towards the wife. They certainly attest to the wife’s
unhappiness in the situation and difficulties between the
parties.
051 It is unclear from the translated protocols what
occurred on that day in those proceedings although the wife
asserts (affidavit paragraph 91) as follows:
“On 16 July 1997 the matter was before the Court
again and the Court refused to grant a divorce.
To the best of my knowledge it was because my
Husband claimed that he was bankrupt and was
therefore unable to pay alimony to me. Because
I was a foreigner, if the Court granted me a
divorce the State would not look after me as I
did not have the same rights as an Austrian
citizen. I believe that therefore the Court was
reluctant to do grant (sic) the Divorce because
I would not entitled (sic) to government
benefits.”
052 At the request of the Court reports were prepared by
two social workers in relation to the custody of the
children and they were in evidence.
053 Lehrer Marlene, the author of the report dated 23 June
1997 in relation to the mother with the children concluded:
“If one considers the results of the
investigations, then it becomes clear that the
situation with the mother of the children
appears to be superior, on the basis of the
housing situation. In addition there is the
circumstance that Mrs M.S. at present is not
working and therefore can devote herself fully
to the care and upbringing of her three
children. A separation of the three children
from their mother, who clearly is very concerned
to look after the welfare of the minor children
as best she can, would surely be against a
positive development of the three boys. The
application of the mother of the children, M.S.,
for the transfer of exclusive custody of her
three minor children Franz, Christian and
Sebastian, is therefore considered favourably.”
054 However earlier in her report she gave a useful
insight into the situation in the household:
“M.S. has been known to the social worker since
March 1997. At that time the parents of the
children were still living together as a family.
There were already considerable differences
between the marriage partners. The conflicts
were partly due to the different backgrounds and
outlook on life of the parents of the children.
Whilst M.S. indicated that she considered
consistency and regularity in the bringing up of
her children as being important, it was alleged
that the father of the minor children gave the
children little guidance because of his
indulgent attitude to the upbringing of the
children. The children were said to have been
often irritated as a result of the contrasting
instructions by the parents and were defiant in
their reactions towards the stricter demands of
the mother of the children. M.S. declared to
the undersigned that in such situations she did
expect too much. There were also differences in
the way in which particular needs of the
children were perceived. M.S. said for instance
that her husband did not allow other children,
playmates of his own children, in the house,
that she was not allowed to give birthday
parties for the children and that her husband
did not provide any money for a visit to the
open-air swimming pool with her children. Since
January 97 M.S. had not received any money from
her husband any more.
The mother of the children experienced the
constant interference and advice from the
grandmother on the father’s side, Anneliese
Forstner, as very difficult to put up with. She
states for instance that she was not allowed to
buy clothes for herself and her children. This
was done by the grandmother on the father’s
side, while M.S. had to accept what she was
given. She was not given any credence for her
own powers of decision.
This tense relationship at several occasions led
to an over reaction on the part of the mother of
the children and to loud disputes between the
marriage partners.
M.S. indicated that the situation in general, as
well as the behaviour of the children, had
improved since the physical separation from her
husband, and that the children had become
quieter, also during the night. During the
house visit of the undersigned, the minor child
Sebastian was present. Sebastian appeared to be
a quiet child, and kept himself busy on his own
during the visit to the house. He also showed
an emotional bond with the mother.”
055 The report of Christine Pescl of 16 June 1997 in
relation to the father’s household stated:
“The following can be reported in relation to
the request of the Local Court of Neunkirchen of
16-05-1997, on the basis of the investigation
carried out:
On 09-06-1997 a house visit was carried out at
the address of the father of the children, F.S.
F.S. lives at the address in question in a
single family dwelling, which belongs in equal
parts to him and to his sister Ms G.D., who
however does not claim ownership.
The house is very roomy and has a floor space of
150 m2. The dwelling includes, opening up from
a front room, a large live-in kitchen, living
room, bedrooms and three further rooms, as well
as various secondary rooms. The kitchen, living
room and one further room, which was used as a
hunting room by the grandfather on the father’s
side, now deceased, although old, have been
suitably furnished; in the other rooms the
furnishings are very much lacking or absent
altogether. F.S. gives as the reason for this
that his wife has taken along most of the
furniture when she left. The inside of the
house can be described partly as desolate. The
wallpaper has been partly torn from the walls.
The carpeting on the floor is mostly dirty and
stained, three doors are missing altogether.
When this was brought to the notice of the
father of the children, he told us that this
situation was brought about by his wife.
With regard to the sleeping arrangements of the
children when exercising visiting rights, F.S.
told us that the minor children currently only
have the marriage bed of the parents at their
disposal. He himself is meant to be sleeping on
a couch.
There is a plant nursery adjacent to the house,
half of which also belongs to the sister of the
father of the children. F.S. who is a gardener
by trade, works in an enterprise. He indicates
that his monthly income currently is 8.000.–
Austrian Shillings.
If the children should be allocated to the
father, then he would want to look after them
himself, since he indicates that as an
“independent person” (somebody who works for his
own account) his working hours are flexible.
The grandmother on the father’s side, Mrs
Anneliese Forstner, born on 19-11- 1941, living
at 2632 Wimpassing, Bundesstrasse 3, is said to
be willing to assist her son with the care of
the grandchildren during three weekdays.
F.S. currently does not carry any compulsory
insurance, and therefore has no sickness benefit
for himself or for the children.
The father is for the moment in agreement with
the visiting contact arrangement as described in
the settlement. He has however not yet
indicated any considerations in regard to what
the visiting rights should be in case his wife
should receive the right to custody of the minor
children. F.S is firmly convinced that he will
be granted the of (sic) the boys.”
056 An issue of some significance in this period was the
lack of health insurance for the wife and children because
the husband had ceased payments in this respect early in
1997.
057 The wife believed and I accept that without that
insurance she would be unable to remain in Austria.
058 Following the listing in July 1997 and prior to her
return to Australia the wife acquired one month’s health
insurance for herself and the children at a cost of $350 for
the one month.
059 The wife appears to have relied, inter alia, on the
failure of the husband to provide that health insurance and
otherwise provide for herself and the children financially,
to obtain passports for the children without the husband’s
knowledge and consent.
060 When the matter returned to Court on 13 August 1997
the husband did not attend and the wife was unrepresented.
She informed the Court of the lack of insurance and
financial support by the husband and her reliance on the
financial support of her family and an order was made for
maintenance for the three children in a sum of 3900 ATS per
month and the proceedings were again adjourned until October
1997.
061 The husband subsequently appealed that maintenance
order and his appeal was dismissed by the Austrian Court on
27 April 1998.
062 As emphasised on behalf of the Central Authority in
the context of her complaints about lack of financial
support the wife continued to receive the rental of the
Beacon Hill property. However that was clearly taken into
account by the Austrian Court.
063 The husband is said to be in a parlous financial
position and referred to at one point in the material, as
now bankrupt.
064 The wife returned to Australia, she said, suddenly and
without premeditation on 15 August 1997, with tickets
arranged by her father.
065 Upon her return to Australia, in October 1997 she
obtained accommodation at Drummoyne and enrolled the twins
in school.
066 The younger child commenced school this year.
067 The wife set out in considerable detail the current
living and social arrangements for the children, which lend
a great deal of weight to her contention that the children
are now happy and well settled here, although that is not a
matter germane to my decision.
068 Of considerable concern however is the fact that the
three children have had no contact with their father despite
his clearly having made a number of attempts to telephone
them through the wife’s parents.
069 As I pointed out during the submissions on behalf of
the respondent when he was addressing on “the risk of
psychological harm to these children” – that lack of contact
with their father is an important area of risk for them at
the present time.
070 On 23 October 1997 the wife filed a Form 7 application
in this Court seeking the following orders:
” 1. That the Respondent Husband forthwith do
all such things and sign all such documents as
may be necessary to transfer all his right,
title and interest in the property at 36 Cormack
Road, Beacon Hill, in the State of New South
Wales and being more fully described as Folio
Identifier (sic) to the Wife.
2. That the Wife indemnifies and keeps
indemnified the Husband from and against all
liability in relation to the repayment of the
loan to the Wife’s parents, together with all
charges on the said property.
3. That the wife have sole custody of the
three children of the marriage, namely F. S.
born 1 June, 1991, C. S. born 1 June, 1991, and
S. S. born 9 July, 1993.
4. That the Respondent Husband be restrained
from taking the children outside New South Wales
or Australia without the consent of the Family
Court of Australia.
5. That the Respondent Husband be granted
access to the three children of the marriage
only when he is in Sydney, Australia, under the
supervision of the Applicant Wife or the
Applicant Wifes parents, such access to be
during the day and the arrangements made between
the Respondent Husband and the Applicant Wife
prior to the Respondent Husband coming to New
South Wales.
6. That the Respondent Husband be ordered to
hand in his passport to the Family Court of
Australia at Sydney with the two children of the
marriage, Franz and Christian.
7. That the Respondent Husband be ordered to
pay maintenance for the three children of the
marriage in the sum of Two hundred dollars
($200.00) per week per child.
8. That any bank accounts, investments,
superannuation or shares currently in the
possession of each party remain the possession
of that party.
9. That the Respondent Husband pay the costs
of the Applicant Wife.”
071 On the same day she filed a Form 8 application seeking
relief identical with the orders sought in paragraphs 3 to 7
inclusive above.
072 That matter first came before this Court on 7 November
1997 when both parties were legally represented and it was
adjourned to 12 December 1997.
073 On 12 December 1997 when both parties were again
represented it was adjourned to 10 February 1998 and the
following noted:
“29 Adjourned to allow matter to proceed in
Austria
30 No further directions made as parties need
to consider their current positions.”
074 On 10 February 1998 both parties were again
represented, the husband was directed for file a Form 7A and
a Form 17 by 20 March 1998, the wife to file a Form 17 by 24
February 1998 and the matter stood over to 27 March 1998 on
which date, when both parties were legally represented, the
parties were directed to a conciliation conference on 19 May
1998, and it was directed that the husband might be involved
by telephone link-up at his expense.
075 That conference occurred, again with both parties
legally represented, and a pre-hearing conference was then
fixed for 4 August 1998 for this case as a standard matter
with property, residence, contact and specific issues at
issue. Again it was directed that the husband’s involvement
in that conference could be by telephone link-up.
076 In the meantime on 27 March 1998 the husband through
his then solicitor filed a faxed copy of a Form 7A and a
Form 17.
077 In that Form 7A the husband sought orders as set out
in the document which is Attachment “B” to these Reasons.
078 At that pre-hearing conference both parties were
represented although the husband was not present.
079 The matter was fixed for three days’ hearing
commencing on 30 November 1998 and the Court conference
sheet notes:
“The husband’s representative agrees matter
should be listed for hearing despite Order 2 in
the husband’s Form 7A filed 27 March 1998.
Husband is overseas and is to return for the
hearing and counselling. Husband is to file
originals of Form 7A and Form 17 within one
month (properly attested to conform with
Rules).”
080 On 10 September 1998 John Quinn, the solicitor
representing the husband in those Family Court proceedings
to that date, filed a Notice that he had ceased to represent
the husband whose future address for service was given as
being in Austria.
081 This was confirmed by a document from the husband in
evidence before me.
082 The husband asserts in circumstances where he was
apparently represented by the same legal representative
throughout the Austrian proceedings that it was only “at the
beginning of the year” that he became aware of the Hague
Convention on the Civil Aspects of International Child
Abduction” through his Australian solicitor and that it was
then he sought the advice of his Austrian solicitor on the
topic.
083 Regulation 16 of the relevant regulations provides:
“…
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 the application was
filed is less than 1 year after the day on which
the child was removed to, or
first retained in, Australia; or
(b) if the day on which the application was
filed is at least 1 year after the day on which
the child was removed to, or first retained in,
Australia unless the court is satisfied that the
child is settled in his or her new environment.
16(2) … A court must refuse to make an order
under subregulation (1) 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; or
(b) the child was not an habitual resident of
a convention country immediately before his or
her removal or retention; or
(c) the child had attained the age of 16; or
(d) the child was removed to, or retained in,
Australia from a country that, when the child
was removed to, or first retained in Australia,
was not a convention country; or
(e) the child is not in Australia.
16(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.
16(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
immediately before his or her removal or
retention.
16(5) … The court to which an application for
the return of a child is made is not precluded
from making an order for the return of a 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.”
083 The first matter at issue is whether Austria was the
habitual residence of the children as at 15 August 1997 when
they were removed and within that issue whether the family
intended to remain in Austria or it was intended to be a
“temporary” measure.
084 The matters emphasised by counsel for the Central
Authority against the wife’s contention that it was
temporary were:
o that they had been living in Austria for some two
years;
o that the husband had a business in Austria which he
had inherited from his father and the business was run
with his sister in premises attached to the house;
o the children were attending kindergartens in Austria;
o the wife’s evidence to the Austrian Court in April
1997 to the effect that she had every intention of
staying in that country;
and he relied mainly on these matters to submit that:
o the parties moved to Austria with the intention of
running the husband’s father’s business;
o that they intended to stay there at least in the
foreseeable future; and
o that the unilateral decision of the wife to move back
to Australia is not sufficient to change the habitual
residence of the children;
and in the course of those submissions I was referred to
Murray v Director, Family Services, ACT (1993) FLC 92-416;
Cooper v Casey (1995) FLC 92-575, and Hanbury-Brown and
Hanbury-Brown (1996) FLC 92-671
085 In Cooper v Casey Nicholson CJ discussed the issue of
habitual residence at some length and after quoting from the
passage from the judgment of the trial Judge in which he had
pointed out that habitual residence is not defined either in
the regulations or the Convention and is in each case a
question of fact, at page 81,695 Nicholson CJ referred to
the following passages in the judgment of Waite J in Re B
(Minors) (Abduction) (No 2) (1993) 1 FLR 993 at 995 setting
out the relevant principles as follows:
‘…
“1. The habitual residence of the young children
of parents who are living together is the same
as the habitual residence of the parents
themselves and neither parent can change it
without the express or tacit consent of the
other or an order of the court.
2. Habitual residence is a term referring, when
it is applied in the context of married parents
living together, to their abode in a particular
place or country which they have adopted
voluntarily and for settled purposes as part of
the regular order of their life for the time
being whether it is of short or of long
duration.
All that the law requires for a ‘settled
purpose’ is that the parents’ shared intentions
in living where they do should have a sufficient
degree of continuity about them to be properly
described as settled.
3. Although habitual residence can be lost in a
single day, for example upon departure from the
initial abode with no intention of returning,
the assumption of habitual residence requires an
appreciable period of time and a settled
intention. The House of Lords in Re J, sub nom
C v S (above) refrained, no doubt advisedly,
from giving any indication as to what an
‘appreciable period’ would be. Logic would
suggest that provided the purpose was settled,
the period of habitation need not be long.
Certainly in Re F (above) the Court of Appeal
approved a judicial finding that a family had
acquired a fresh habitual residence only one
month after arrival in a new country.”
…’
086 Counsel for the wife stressed the passage which refers
to the requirement of establishing a ‘settled purpose’ that
“the parents’ shared intentions in living where they do
should have a sufficient degree of continuity about them to
be properly described as settled” to submit that “the
habitual residence of these children was Australia when they
left for Austria and it remained Australia because the
children and the parents went to Austria for a period of
time but without the necessary settled purpose by both their
parents to remain permanently or for whatever period of time
suggested to give the children an habitual residence in
Austria.” I accept that submission.
087 Whilst conceding the evidence of the wife referred to
in the divorce proceedings to the effect that the wife
intended to remain in Austria in the long term and to be
domiciled there, he also referred to the husband’s
declaration that, for his part that he would not think of
resettling in Australia for the next few years for
occupation reasons, to submit that that evidence was given
in the context of both parents indicating an intention to
apply for sole care of all children.
088 Mr Anderson for the wife also referred to the question
put to the husband’s mother as to the wife’s contention
“that the defendant had only promised the plaintiff a
temporary stay in Austria; that he had gone against the
desires of the plaintiff and deviated from it and the
plaintiff had to struggle against increasing difficulties in
adapting in Austria” and her response, “Well, I am hearing
this for the first time.” Given the mother’s antipathy
towards the wife, evident from a reading of her evidence, I
do not accept that that response is of particular
significance.
089 Counsel for the wife also referred to the evidence of
the husband’s sister to the effect that the wife became
“hysterical” about a year after their arrival from Australia
and submitted that this coincided with the wife “beginning
to realise that she was trapped in Austria and that the
husband had no intention of honouring the promise that was
made at the time they left Australia.”
090 I am further satisfied that the evidence, particularly
that relating to the parties’ leaving items of furniture,
personal clothing, children’s clothing and toys, and the
wife’s motor vehicle in Australia and retaining ownership of
their former matrimonial home here, is supportive of the
submission that when they left for Austria their habitual
residence remained Australia.
091 However I have given careful consideration to whether
at some subsequent time they developed a settled purpose to
stay in Austria. Ultimately I am not persuaded on the
evidence in this case that these parents ever formed a
shared intention to remain in Austria and for it to be the
permanent residence of these children.
092 However if I am in error in that finding there are
other aspects of this case which support the wife’s
resistance to the application for return of the children.
093 Counsel for the wife dealt with the two issues as to
whether or not there had been a removal or retention under
the regulations (Regulation 16(2)(a)) and whether the
husband was exercising rights of custody (Regulation
16(3)(a)(i)), together.
094 He submitted that the “removal” is only a removal
within the meaning of the regulations if there is a breach
of rights of custody which were actually being exercised and
I accept that submission.
095 Regulation 3(1) provides:
“…
3(1) [“removal of a child”] A reference in
these Regulations to the removal of a child is a
reference to the removal of that child in breach
of the rights of custody of a person, an
institution or another body in relation to the
child if, at the time of removal, those rights:
(a) were actually exercised, either jointly or
alone; or
(b) would have been so exercised but for the
removal of the child.
3(2) [“retention of a child”] A reference in
these Regulations to the retention of a child is
a reference to the retention of that child in
breach of the rights of custody of a person, an
institution or another body in relation to the
child if, at the time of retention those rights:
(a) were actually exercised, either jointly or
alone; or
(b) would have been so exercised but for the
retention of the child.”
096 Regulation 4 provides:
“…
4(1) [“rights of custody”] For the purposes of
these Regulations, a person, an institution or
another body has rights of custody in relation
to a child, if:
(a) the child was habitually resident in
Australia or in a convention country immediately
before his or her removal or retention; and
(b) rights of custody in relation to the child
are attributed to the person, institution or
other body, either jointly or alone, under a law
in force in the convention country in which the
child habitually resided immediately before his
or her removal or retention.
4(2) [Care of the person of the child] For the
purposes of subregulation (1), rights of custody
include rights relating to the care of the
person of the child and, in particular, the
right to determine the place of residence of the
child.
4(3) [How rights of custody may arise] For the
purposes of this regulation, rights of custody
may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative
decision; or
(c) by reason of an agreement having legal
effect under a law in force in Australia or a
convention country.”
097 Attached to the application is a certificate from the
Federal Ministry of Justice of the Republic of Austria which
states:
“…
The Federal Ministry of Justice empowered to do
so by art. 282 of the Act concerning the
judicial procedures in non-contentious matters,
1854, and by art. 4 para. 2 of the Act executing
the Hague Convention on the Civil Aspects of
International Child
Abduction certifies as follows:
According art. 144 of the Austrian Civil Code
both parents of a child born in wedlock are
entitled to care for the child, to administer
his/her property and to act as legal
representatives of the child (joint parantal
responsibilities). They are bound to exercise
these rights on good terms with each other.”
098 In circumstances where the arrangements set in place
for these children by the Austrian Court were that the
children should reside with the mother and the father have
visitation rights, I am satisfied that the father was not
exercising rights of custody to the children at the time
they were removed from Austria and that accordingly their
removal was not a removal within the meaning of the
regulations.
099 A further significant aspect of this case is the
wife’s defence that the husband has acquiesced in the
children’s retention in Australia.
100 Although I have found in the wife’s favour in relation
to regulation 16(2)(a) and (b), I propose dealing with the
evidence in relation to this further defence because I am
satisfied that it is a significant matter which lends
support in all of the circumstances of this case, to a
finding that the application under the regulations should
fail.
101 Counsel for the wife relied on a House of Lords
decision ofIn re H. and Others (Minors) (Abduction:
Acquiescence) 2 WLR 25 April 1997 at page 563 where at
pages 572-575 Waite LJ discussed acquiescence and in
particular at page 574-575:
“It is a feature of all developed systems of law
that there are circumstances in which one party,
A, has so conducted himself as to mislead the
other party, B. as to the true state of the
facts. In such a case A is not allowed
subsequently to assert the true facts as against
B. In English law, this is typically
represented by the law of estoppel but I am not
suggesting that the rules of English law as to
estoppel should be imported into the Convention.
What is important is the general principle to be
found in all developed systems of law.
It follows that there may be cases in which the
wronged parent has so conducted himself as to
lead the abducting parent to believe that the
wronged parent is not going to insist on the
summary return of the child. Thus the wronged
parent may sign a formal agreement that the
child is to remain in the country to which he
has been abducted.
Again, he may take an active part in proceedings
in the country to which the child has been
abducted to determine the long-term future of
the child. No developed system of justice would
permit the wronged parent in such circumstances
to go back on the stance which he has, to the
knowledge of the other parent, unequivocally
adopted: to do so would be unjust.
Therefore in my judgment there are cases (of
which In re A.Z. (A Minor) (Abduction:
Acquiescence) [1993] 1 F.L.R. 682 is one) in
which the wronged parent, knowing of his rights,
has so conducted himself vis-a-vis the other
parent and the children that he cannot be heard
to go back on what he has done and seek to
persuade the judge that, all along, he has
secretly intended to claim the summary return of
the children. However, in my judgment these
will be strictly exceptional cases. In the
ordinary case behaviour of that kind will be
likely to lead the judge to a finding that the
actual intention of the wronged parent was
indeed to acquiesce in the wrongful removal. It
is only in cases where the judge is satisfied
that the wronged parent did not, in fact,
acquiesce but his outward behaviour demonstrated
the contrary that this exceptional case arises.
My Lords, in my judgment these exceptional
circumstances can only arise where the words or
actions of the wronged party show clearly and
unequivocally that the wronged parent is not
insisting on the summary return of the child:
they must be wholly inconsistent with a request
for the summary return of the child. Such clear
and unequivocal conduct is not normally to be
found in passing remarks or letters written by a
parent who has recently suffered the trauma of
the removal of his children. Still less is it
to be found in a request for access showing the
wronged parent’s desire to preserve contact with
the child, in negotiations for the voluntary
return of the child, or in the parent pursuing
the dictates of his religious beliefs.
It may be object that to admit the existence of
such exceptional cases in which the actual
subjective intentions of the wronged parent do
not prevail is to reintroduce by the back door
the distinction between active and passive
acquiescence which I have rejected. It is true
that there are features common to both
approaches. But in my judgment the two concepts
are not the same. The concept of active and
passive acquiescence has led to the approach
that acquiescence has to be tested objectively
whereas in my view it is a question of
subjective intention. The concept of active and
passive acquiescence has also led, as in the
present case, to a wronged parent who has not,
in fact, acquiesced being held to have
acquiesced because he has taken some positive
action without any analysis of what he has in
fact done. The important factor to emphasise is
that the wronged parent who has in fact never
acquiesced is not to lose his right to the
summary return of his children except by words
or actions which unequivocally demonstrate that
he was not insisting on the summary return of
the child.”
(emphasis added)
102 The husband through his legal representative in this
country actively participated in these proceedings for well
in excess of nine months before the wife was served with
this application.
103 Whilst I am conscious of and have taken into account:
o the husband’s evidence that he did not receive advice
until about April 1998 (ie. about six months after the
commencement of the Family Court proceedings) as to
the existence of the procedure under the Convention,
he has been legally represented in both countries at
all times until comparatively recently; and
o the terms of his Response filed on 27 March 1998
(which appear to amend the original intention of the
document in relation to the children) which sought
that issues in relation to the children be dealt with
in Austria and issues of property be dealt with in
Australia (which in my view in the context of these
proceedings does no more than raise a former issue in
relation to one aspect of the proceedings commenced in
this Court);
104 I consider that the wife in this case was entitled to
believe that the husband was not insisting on the summary
return of the children to Austria.
105 Given those findings I do not propose to traverse in
detail the other defences raised on the wife’s behalf,
although I have taken into account in relation to regulation
16(3)(a) the information as to the social background of the
children, contained in the protocols particularly the report
of the social worker.
106 Accordingly because I am not persuaded:
o that removal of these children was a removal with the
meaning of the Regulations;
o that the children were habitual residents of Austria
at the time of removal;
o that the father was actually exercising rights of
custody at the time of their removal;
107 and am satisfied:
o that the husband has subsequently acquiesced in the
children being retained in Australia;
108 I would dismiss the application of the Central
Authority.
109 However I consider that the orders of 18 August 1998
and 2 September 1998 should continue until further order.
110 For all these Reasons my Orders will be:
1. That the Orders of 18 August 1998 and 2 September 1998
continue until further Order of this Court.
2. That the balance of the application of the Central
Authority filed 14 August 1998 be dismissed.
____________
I certify that this and the preceding 24 pages is a true
copy of the Reasons for Judgment of her Honour Justice
Maxwell.
Associate