AUSTRALIA – MURRAY – 1993) (Return ordered) Mother took children to Australia from New Zealand. The mother claimed abuse by the father. Children were ordered returned to New Zealand. Mother appealed. Appeal dismissed.
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AUSTRALIA – MURRAY – 1993 (1993) (Return ordered) Mother took children to Australia from New Zealand. The mother claimed abuse by the father. Children were ordered returned to New Zealand. Mother appealed. Appeal dismissed.
Murray Appeal No EA 51 of 1993 (Australia)
Date of Hearing 19, 23 August and 1 September
Date of Judgment 6 October 1993
Coram Nicholson CJ, Fogarty, and Finn JJ
Catchwords: Family Law – Hague Convention on the Civil
Aspects of Child Abduction – Australia and
New Zealand – Wrongful removal or retention
– Time at which relevant – Relevance of
welfare and paramountcy principle – Meaning
of reg. 16(3)(b) “grave risk …
intolerable situation” – Interpretation of
Family Law (Child Abduction Convention)
Regulations – regs. 2; 17; 16; 18 – Family
Law Act 1975 ss 64(1)(a), (d); IIIB.
Courts – Practice and Procedure – Order of
Judicial Registrar – Power and duty of
court to review – Power exercisable by Full
Court – Effect of review on orders
registered in New Zealand – Family Law Act
1975 ss 26B(1); 26C(2); 28(1); 28(2A); 68;
94(2) – Family Law Rules Order 36A –
Guardianship Act (New Zealand) ss 22B; 22C;
22E.
International Law – International
Conventions – When incorporated into or
relevant to interpretation of domestic law
– United Nations Convention on the Rights
of the Child; Hague Convention on the Civil
Aspects of Child Abduction – Human Rights
and Equal Opportunity Act 1986.
The mother brought her three New Zealand children to Australia on
15 April 1993, alleging that her husband had inflicted upon her
numerous acts of violence and had made death threats to her.
She said that she had left New Zealand, not to gain an advantage
over the husband in custody proceedings, but to remove herself and
the children from a situation of violence, fear and terror. She
had her father and extended family to call upon for assistance in
Australia. She said that if she returned to New Zealand she could
not safely stay with any of her relatives or friends, but would
have to stay in a Women’s Refuge.
She expressed particular concern because of her husband’s
membership of a gang known as the “Mongrel Mob” which she claimed,
were likely to be enlisted by the husband to perform acts of
violence against her.
Immedately following her arrival in Australia, the mother
initiated an application for, inter alia, orders for custody of
the children, for her personal protection, and an injunction
restraining the husband from removing the children from Australia.
The mother obtained orders for sole custody and guardianship
before a Judicial Registrar on 28 June 1993. In those proceedings,
her solicitor failed to advise the Judicial Registrar of
proceedings under the Convention on the Civil Aspects of
International Child Abduction 1980 (the Hague Convention) which
had by that time commenced in New Zealand. Material to this effect
had been sent by facsimille by the father’s solicitors on 15 June
1993 to both the mother’s solicitors and the Registrar who set
down the matter for hearing before the Judicial Registrar.
The father made formal application under the Hague convention to
the New Zealand Central Authority on 17 June 1993 and proceedings
commenced before the trial Judge in Canberra on 7 July 1993. In
the meantime, the mother’s solicitors arranged for the
registration of the orders of the Judicial Registrar in New
Zealand where under New Zealand law they had the same effect as if
made in New Zealand. Although the husband applied for their
discharge in New Zealand, the application under the Hague
Convention proceeded on the basis that the orders were still in
force.
The trial Judge ordered that the children be returned. The mother
appealed and the Commonwealth Attorney-General was invited to
intervene. Arguments in the appeal addressed the following issues:
1) Review of the Judicial Registrar’s order;
2) Whether “wrongfulness” is determined with reference to the
circumstances at the time of removal or the time of hearing;
3) Whether Article 3 of the United Nations Convention on the
Rights of Child applies to the hearing of an application
under the Hague Convention;
4) Whether the paramountcy principle in s 64(1)(a) of the
Family Law Act applies to an application under the Hague
Convention and the relevant regulations;
5) The circumstances in which return will not be ordered due to
grave risk of harm.
The Court also considered the status of international instruments
in Australian domestic law.
Held: appeal dismissed
(per curiam)
1. The Full Court has a positive duty to review the decision of
the Judicial Registrar in circumstances where there appears
to have been an incorrect decision. Sections 28(1) and
28(2A) make it clear that such jurisdiction may be exercised
in the course of an appeal. In this case, the orders should
be set aside. The Judicial Registrar was under no obligation
to read material on the file but the solicitor for the wife
had an obligation to advise the Judicial Registrar about his
knowledge of an application under the Hague Convention.
2. For the purposes of the Family Law (Child Abduction)
Regulations, the terms “removal” and “retention” are
alternative and discrete events. Article 3 of the Hague
Convention explains when removal or retention is to be
considered wrongful. In the case of a removal, the Court
should look at the time when the removal occurred. In the
case of retention, the court should look at the time that
the retention first occurred. The operative time for
determining whether removal was wrongful in this case was at
the time the children left New Zealand not the time of the
hearing. In any event, setting aside the Judicial
Registrar’s order operated to nullify the effect of the
registration of the Australian custody order in New Zealand.
3. Article 3 of the United Nations Convention on the Rights of
the Child requires that the best interests of the child
shall be a primary consideration but there are other
articles therein which deal specifically with wchild
abduction. The United Nations Convention on the Rights of
the Child is not to be regarded as inconsistent with the
Hague convention. The Hague Convention proceeds upon the
basis that the rights of the child are best protected by
having issues as to custody and access determined by the
Courts of the country of the child’s habitual residence,
subject to the exceptions contained in Article 13.
4. The issue in a Hague convention application is purely one of
forum subject to the exceptions referred to in Regulation
16. The paramountcy principle is accordingly not relevant.
5. The circumstances in which the exceptions referred to in
Regulation 16(3) come into operation should be largely
confined to situations where the jurisidiction of habitual
residence does not have a system of law which is able to
provide protection from the alleged harm. New Zealand has a
system similar to that in Australia.
per Nicholson CJ and Fogarty J
Discussion as to the circumstances in which an international
instrument may be incorporated into or relevant to the
interpretation of domestic law.
Cases Considered
Barraclouqh and Barraclouah (1987) FLC 91-838
Director General, Family and Community Services and Davis (1990)
FLC 92-182
Gsponer and Director General, Department of Community Services,
Victoria (1989) FLC 92-001
Harris v Calladine (1991) FLC 92-217
D (a minor) v the Berkshire County Council (1987) All ER 20
Re H and S (1991) 3 All ER 230
Kilgour v Kilqour 1987 SLT 568
Rexford v Rexford (Alaska 1980) 631 P.2d 475
Plas v Superior Court (1984) 155 Cal.App.3d 1008 [202 Cal.Rptr.
490]
Minister For Foreign Affairs v Maqno (1993) 112 ALR 529
Dietrich v R (1992) ALR 385
In Re Marion (l99l) FLC92-193
Secretary, Department of Health and Community Services (NT) v JWB
and SMB (1992) 66 ALJR 300
Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992)
108 ALR 577
Nationwide News Pty Ltd v Willy (1992) 108 ALR 681
Mabo v Queensland (1992) 107 ALR 1
Jago v District Court of NSW (1988) 12 NSWLR 558
In re A (a Minor) (1988) 1 Fam. L. R. (Eng) 365
Brown v Director General (Nicholson CJ, Family Court of Australia,
6 September 1988, unreported);
Tahan v Duquette (Segal J, Superior Court of New Jersey in 24 June
1992, unreported).
Re Evans (Court of Appeal England, 20 July 1988 unreported).
REPORTABLE
TEXT OF DECISION:
This is an appeal from the decision of Baker J given on 16 July
1993, when his Honour ordered that three children, Atawhai
Teahikaa Tam born 27 July 1988, Louisa Tam born 25 July 1989 and
Hemi Robert William Tam born 12 July 1991 be returned to New
Zealand.
The order was made on the application of the State Central
Authority for the Australian Capital Territory, instituted
pursuant to the Family Law (Child Abduction Convention)
Regulations (hereafter referred to as “the Regulations)”. The
Regulations are made pursuant to the power conferred by s111B of
the Family Law Act 1975 which enables the making of “such
provision as is necessary to enable the performance of the
obligations of Australia, or to obtain for Australia any advantage
or benefit under the Convention on the Civil Aspects of
International Child Abduction 1980” (hereafter referred to as the
Hague Convention).
The three children had been brought to Australia by their mother,
from New Zealand on 13 April 1993.
The mother is an Australian citizen and she first commenced
cohabitation with the father, Harry Tam, who is a New Zealand
citizen, in August 1987. All the children were born in New
Zealand, are New Zealand citizens and have lived there throughout
their lives. They were married on 27 February 1993 and separated
some six weeks later when the wife brought the children to
Australia.
According to the wife, in an affidavit sworn in support of her
custody application to this Court and later re affirmed in an
affidavit sworn in these proceedings, the relationship was
characterised by many acts of violence on the part of the husband,
which culminated in violent attacks over some days in April 1993,
which included head butting, punching, kneeing her at the base of
the spine and death threats and which led to her leaving him and
coming to Australia with the children. She claimed that many of
the acts of violence to which she deposed either took place in the
presence of or in close proximity to the children.
The husband for his part, in an affidavit sworn on 18 June 1993 in
support of the application to return the children, admitted that
he had always had a turbulent relationship with the wife and that
there had been some incidents of violence between them, but he
said that the wife’s claims made by her to this Court after
arriving in Australia were exaggerated and in parts untrue.
In an affidavit sworn in these proceedings, the wife exhibited
photographs of herself taken on 14 April 1993 which are indicative
of considerable physical damage and bruising to her, consistent
with the sort of violent attack which she described in her earlier
affidavit.
She said that she had left New Zealand, not to gain an advantage
over the husband in custody proceedings, but to remove herself and
the children from a situation of violence, fear and terror and
that she had her father and extended family to call upon for
assistance in Australia. She said that if she returned to New
Zealand she could not safely stay with any of her relatives or
friends, but would have to stay in a Women’s Refuge.
She expressed particular concern because of her husband’s
membership of a gang known as the “Mongrel Mob”, which she claims,
are likely to be enlisted by the husband to perform acts of
violence against her.
She also claimed that the husband keeps an assortment of weapons
including unlicensed firearms, “Nunchukas”, knives, chains and
meat cleavers at his home and that he is a violent person who is
likely to use such weapons against her.
She said that the children had been detrimentally affected by the
husband’s violent behaviour in the past and that there was a grave
risk that they would be subjected to an intolerable situation and
psychological harm if they are returned to New Zealand.
Immediately following her arrival in Australia, on 15 April 1993,
the wife made an application to this Court for, inter alia, orders
for custody of the children and for orders for her personal
protection and an injunction restraining the husband from removing
the children from Australia.
This application was returnable in the Canberra Registry of the
Court on 15 June 1993 and it appears that it, together with the
accompanying affidavit by the wife, was duly served on the husband
in New Zealand.
On 15 June 1993, the husband did not appear and the matter was set
down by the Registrar as an undefended matter for hearing on 25
June 1993 and the Registrar directed the wife’s solicitors to give
notice to the husband to this effect, which they did, by letter
dated 15 June 1993, a copy of which was sent to the husband’s
solicitors.
On the same day, the solicitors for the husband forwarded a
facsimile transmission addressed to the Registrar of the Court in
Canberra submitting that the Court had no jurisdiction to
entertain a custody and guardianship application and stating
“We further advise that we have drafted an application in
accordance with the 1980 Hague Convention on the Civil Aspects of
International Child Abduction for the return of these three
children abducted from New Zealand. Mr Tam will be attending our
offices tomorrow to sign this application and to give us further
information for a supporting affidavit and we intend filing these
with the New Zealand Justice Department before the end of this
week.”
A similar communication was made on the same day to the wife’s
solicitors.
Presumably, by the time the matter next came before the Registrar
on 25 June 1993, the Registrar was aware of the foreshadowed Hague
Convention proceedings.
On 25 June 1993, the Registrar adjourned the matter for hearing
before Judicial Registrar Nikakis on 28 June 1993 and requested
that the wife’s solicitors advise the husband’s solicitors of the
new date, which they forthwith did by facsimile transmission on
that day.
On the same day (25 June), the husband’s solicitors forwarded a
facsimile transmission to the wife’s solicitors which, inter alia,
contained the following passage:
“We acknowledge receipt of your facsimile dated 25 June 1993. As
stated in our facsimile dated 15 June 1993, we are opposed to the
making final of any orders on the basis that custody issues should
be dealt with in New Zealand. We refer you to the Hague Convention
on the Civil Aspects of International Child Abduction.
We confirm that formal applications were sent to the New Zealand
Central Authority on 17 June 1993.”
It is thus apparent that by the time the matter came on for
hearing before the Judicial Registrar on 28 June 1993, the wife’s
solicitors were not merely aware that a Hague Convention
application was foreshadowed, but that an application had been
made to the New Zealand Central Authority.
Consistent with the position adopted by his solicitors, the
husband did not appear and was not represented before the Judicial
Registrar.
We have obtained a transcript of the proceedings before the
Judicial Registrar and it is apparent that no mention was made to
him by the solicitor appearing for the wife of any anticipated
Hague Convention proceedings, or, in particular, of the fact that
he had been informed of the making of an application to the New
Zealand Central Authority by the husband.
He was clearly under a duty to do so and his failure may well have
misled the Judicial Registrar as to the true situation. It is
true that notice of a pending application had been given to the
Registrar on 15 June, but by 28 June the matter had further
progressed, to the knowledge of the wife’s solicitor. In addition,
he should not have assumed that the Judicial Registrar had
knowledge of the earlier communication to the Registrar. WMH FN01
That failure is to be regarded even more seriously, when regard is
had to Article 16 of the Convention, which is as follows:-
“After receiving notice of a wrongful removal or
retention of a child in the sense of Article 3, the
judicial or administrative authorities of the
Contracting State to which the child has been
removed or in which it has been retained shall not
decide on the merits of rights of custody until it
has been determined that the child is not to be
returned under this Convention or unless an
application under this Convention is not lodged
within a reasonable time following receipt of the
notice.”
None of these matters were brought to the attention of the
Judicial Registrar who proceeded to order that the wife have sole
custody and guardianship of the children and also ordered, inter
alia, that the husband be restrained from removing the children
from Australia.
There can be little doubt that had the Judicial Registrar been
informed as to what had occurred and as to the terms of Article
16, he would not have made the orders that he did.
The Hague Convention proceedings were commenced in this Court on 7
July 1993 and heard by Baker J on 16 July 1993.
In the meantime, the solicitors for the wife arranged for the
registration of the order of the Judicial Registrar with a
Registry of the District Court of New Zealand pursuant to s 22A(3)
of the New Zealand Guardianship Act 1968.
It appears from Baker J’s judgment that the husband has filed an
application in the District Court of Dunedin, New Zealand, for the
discharge of the Australian custody order, but neither his Honour
or ourselves are aware of the fate of that application and we
proceed for present purposes, as did his Honour, upon the basis
that it is still in force.
Baker J found that prior to the time of their departure the
parties and the children were living together in the former
matrimonial home at Dunedin and that there were no orders in
existence in New Zealand affecting their custody at that time.
Pursuant to the New Zealand Guardianship Act, it is clear, as his
Honour found, that the husband was a joint guardian of the
children and was exercising rights of custody in respect of them
at the time that they were removed from New Zealand.
Under Regulation 2(1) rights of custody are defined as having the
same meaning as in the Hague Convention and removal in relation to
a child, means the wrongful removal or retention of a child within
the meaning of that Convention.
Article 3 of the Hague Convention is as follows:
“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 the 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.”
New Zealand is a party to the Convention and its accession to the
Convention was accepted by Australia on 23 February 1992.
In the present case, his Honour accordingly found that in all the
circumstances the removal of the children by the wife was wrongful
within the meaning of Article 3.
He rejected an argument by Counsel for the wife that the
registration of the Australian order in New Zealand had the effect
of removing the husband’s rights of custody in New Zealand and
that the decision of Kay J in Barraclough and Barraclough (1987)
FLC 91-838 meant that the time for examination of the husband’s
rights of custody under the Hague Convention was the time of the
hearing of the application and not the time of removal of the
children.
His Honour sought to distinguish Barraclough’s case on its facts
and upon the basis that the order in the present case was made by
a Judicial Registrar and that, although properly made, the time
for review had not then expired.
His Honour also considered that by reason of Regulation 18 of the
Regulations he was not obliged to give effect to the Australian
custody order as registered in New Zealand as overriding the
application under the Hague Convention.
Regulation 18 provides as follows:
“On the hearing of an application under sub-regulation
15(1) in relation to a child, a court shall not refuse to make an
order under sub-regulation 15(2) for the return of the child to
the applicant by reason only that in relation to that child there
is in force or enforceable in Australia an order in relation to
the custody of the child, but may take into account the reasons
for making that order.” WMH FN02
His Honour took the view that Regulation 18 “clearly contemplates
orders made in identical circumstances to those made in this case”
and that Regulation 18, prima facie, applies to any order which is
either in force in Australia or enforceable in this Country in
relation to the custody of children.
His Honour also rejected an argument by counsel for the wife based
upon Regulation 16(3) that there was a grave risk that the
children’ return to New Zealand would expose them to physical or
psychological harm or would otherwise place them in an intolerable
situation. WMH FN03
This argument was based upon the wife’s evidence and that of her
mother and other witnesses as to domestic violence, the husband’s
involvement with the “Mongrel Mob”, and various threats, including
death threats, which he was alleged to have made to or in respect
of the wife.
His Honour commented that it was not possible to determine the
veracity of these allegations and that most of the evidence in
relation to them would only be available in New Zealand.
He referred to the decisions of this Court in Director General,
Family and Community Services and Davis (1990) FLC 92-182 and
Gsponer and Director General, Department of Community Services,
Victoria (1989) FLC 92-001 and took the view that it would be to
denigrate the New Zealand Courts and, in particular the Family
Court of New Zealand, to assert that the wife and children could
not be protected from harm by the Courts if the need arose.
His Honour also found that there was no evidence to suggest that
the children would come to any harm if they were to be returned
and that the New Zealand Courts would act swiftly to protect the
wife should the need arise.
By reason of an injury to one of the children which had been
sustained at kindergarten, his Honour stayed the operation of the
order pending an improvement in her medical condition.
When the appeal first came on for hearing in Sydney on 11 August
1993, Mr Rose QC, for the Appellant wife, sought to argue that the
application was also governed by s64(1)(a) of the Family Law Act
that the welfare of the child was the paramount consideration
and/or by the United Nations Convention on the Rights of the Child
(hereafter referred to as the “UN Convention”) and that the Hague
Convention should be read as subject to the UN Convention.
We accordingly adjourned the further hearing of the Appeal to
Canberra in order to give the Attorney General for the
Commonwealth the opportunity to intervene. He did so and was
represented by the Solicitor-General, Dr Griffith, QC, and Mr
Gageler.
The hearing proceeded in Canberra on 19 August and being
uncompleted, resumed in Melbourne on 23 August, when we reserved
our decision. Before that decision was given, the wife’s
solicitors made application for the Court to be reconvened to hear
an application to receive fresh evidence.
In the meantime the Court determined that it wished to hear
further argument on the meaning of the Regulations and the Hague
Convention and on the issue as to whether the Court should, of its
own motion, review the decision of the Judicial Registrar of 28
June.
The Court accordingly reconvened on 1 September and heard the
application to receive fresh evidence and further argument and
determined to review the decision of the Judicial Registrar.
Before turning to the substantive grounds of appeal it is
desirable to deal with the issue of the review, which has a
significant effect upon the matter. We have already commented to
the effect that, in the circumstances of the present case, the
order of the Judicial Registrar should not have been made and that
this view gains further force by reason of the provisions of
Article 16 of the Hague Convention.
We shall discuss the relevance to Australian domestic law of those
Articles of the Hague Convention, like this one, which have not
been specifically incorporated into the Regulations, at a
subsequent stage of our judgment, but at the very least, it is
apparent that this was a matter which the Judicial Registrar
should have taken into account in the exercise of his discretion
to proceed to hear the matter and, as we have said, it should have
been drawn to his attention by the solicitor appearing for the
wife.
In the present case, the Court had notice that the husband was
contending that the children had been wrongfully removed from New
Zealand, as in fact they had been, and that he was proposing to
make an application under the Hague Convention, such notice being
constituted by his solicitors’ facsimile transmission to the
Registrar of 15 June 1993. In the circumstances the Registrar
should not have set the matter down for hearing before herself on
25 June or before the Judicial Registrar on 28 June.
Further, we have already commented upon the wife’s solicitor’s
failure to reveal the true facts to the Judicial Registrar. In
addition, he did not draw his attention to the content of Article
16.
As we have said, we decided that we would review that decision and
we now state our reasons for doing so. Section 26C(2) of the
Family Law Act provides:-
“The Court may, on application made under subsection
(1) or of its own motion, review the exercise by a
Judicial Registrar of a power delegated under
subsection 26B(1), and may make such orders as it
considers appropriate in relation to the matter in
relation to which the power was exercised.”
Pursuant to a combination of s26B(1) and Order 36A(3)(d), Judicial
Registrars exercise delegated power to make any order in
undefended proceedings, but, any such order is subject to review
by the Court of its own motion.
The procedure on such a review is governed by Order 36A Rule 7(4),
which provides, inter alia, that the court shall proceed by way of
hearing de novo, may receive as evidence any affidavit or exhibit
tendered before the Judicial Registrar, may, by leave, receive
additional evidence and may receive as evidence the transcript of
the proceedings before the Judicial Registrar.
Mr Rose argued that we should not review the decision, because,
firstly, if the Judicial Registrar had read the file he would have
seen the facsimile transmission of the 15 June, secondly that the
matter had been before the court before and the solicitors for the
husband had notice of the application and could have appeared so
that there was no reason why the Judicial Registrar should have
adjourned the matter, and thirdly that there had been a
significant delay in the making of the application under the Hague
Convention by the time that the matter came on for hearing on 28
June.
We do not consider that these contentions have substance. It
cannot be assumed that the Judicial Registrar had read the file.
He was under no obligation to do so. Indeed, he probably had a
positive obligation not to read correspondence on the file and
there would have been no reason for him, in the circumstances of
this case, to read notations as to the Registrar’s previous orders
or the orders themselves, assuming that they had been engrossed,
unless they were brought to his attention. If he was aware of the
Hague Convention application, this is all the more reason why he
should not have made the orders.
Secondly, the solicitors for the husband and the husband himself
were perfectly entitled to take the position that they did, namely
that they would not appear but rely upon the Hague Convention
application. At least one of the purposes of the Convention is to
relieve parents from the necessity of appearing before the Courts
of the country to which the child has been abducted in
circumstances where the Convention applies.
Thirdly, a very short time only had elapsed before the matter was
dealt with by the Judicial Registrar, in circumstances where there
was no urgency about the matter because interim orders had been
made in favour of the wife.
Mr Rose next submitted that the Full Court could only exercise
power to hear an appeal pursuant to s94(2) and could not review a
decision of a Judicial Registrar.
It is unnecessary to decide this issue, because as was pointed out
in argument, s28(1) enables the original jurisdiction of the Court
to be exercised by one or more judges and s28(2A) makes it clear
that such jurisdiction may be exercised by members of the Appeal
Division.
Accordingly, it becomes unnecessary to decide whether we are
reviewing the decision of the Judicial Registrar as a Full Court
or under s28(1) as the effect is the same.
However, we should make it clear that we consider that we not only
have a right, but a positive duty, to review the decision of the
Judicial Registrar in this case in circumstances where it appears
to have been an incorrect decision.
In Harris v Calladine (1991) FLC 92-217, Mason CJ and Deane J said
at 78,469 that two conditions must be satisfied before a
delegation of power by the federal judiciary could be
constitutionally valid :-
“The first condition is that the delegation must not
be to an extent where it can no longer properly be
said that, as a practical as well as a theoretical
matter, the judges constitute the court. This means
that the judges must continue to bear the major
responsibility for the exercise of judicial power at
least in relation to the more important aspects of
contested matters. The second condition is that the
delegation must not be inconsistent with the
obligation of the court to act judicially and that
the decisions of the officers of the court must be
subject to review or appeal by a judge or judges of
the court.”
Similarly at 78,486, Dawson J said:-
“For where the function of exercising the discretion
is delegated by a court, as it may be delegated to a
Registrar, the exercise of the delegated discretion
cannot confine the exercise of the same discretion
by the person in whom it is primarily reposed.”
In our view, in any circumstance where it appears that a decision
by a person exercising delegated judicial power is or may be
incorrect, a judge is under a positive duty to review the same,
for if this is not done then the first test laid down by Mason CJ
and Deane J would not be satisfied, in that it could be said that
the judges no longer constitute the court.
After announcing our decision to review the decision of the
Judicial Registrar, we invited Mr Rose to advance argument as to
why we should not set it aside and adjourn the further hearing of
the wife’s application for custody to a date to be fixed, pending
the outcome of the present application.
Mr Rose submitted that we should not do so, firstly because he
sought to adduce evidence as to the welfare of the children at the
present time, and secondly because the consequences of doing so
would be that the order would no longer be enforceable in New
Zealand and thus could not be relied upon in these proceedings.
As to the first argument we do not think that the wife should be
permitted to now introduce further evidence as to the childrens’
welfare on such a review, because the issue before the Court is
not that of custody, but rather a threshold issue of whether,
having regard to the application under the Hague Convention, the
custody proceedings should be adjourned to await the determination
of the Convention application. Under Article 16, as we have
pointed out, decisions on the merits of rights of custody should
not be taken until it has been determined that the children will
not be returned.
As was pointed out in argument, the second submission is
circuitous in that, if the order should not have been made, it is
not to the point what the consequences will be if it is set aside.
For the reasons already given, we think that the order should be
set aside and the wife’s application for orders for guardianship
and custody adjourned to a date to be fixed, following the
determination of this appeal.
The effect of these orders will be that there will no longer be an
enforceable order for custody and guardianship in favour of the
wife in New Zealand {see s 22E(1) Guardianship Act (New Zealand)}.
Returning to the appeal itself, it is unnecessary for present
purposes to set out the grounds of appeal (as amended) in detail.
It should, however, be appreciated that the substantive argument
before us proceeded upon the basis that the Judicial Registrar’s
order was extant and had been validly registered as the issue of
the review of it had not arisen or been determined at that stage.
The six broad arguments of the appellant were, firstly that his
Honour erred in treating the time of removal of the children from
New Zealand as the operative time for determining whether Article
3 of the Hague Convention applied and that the operative time was
in fact the time of hearing. If this were done it was argued that
the husband then had no rights of custody as these, it was said,
were extinguished by the registration in New Zealand of the
Australian order and its being rendered operative by New Zealand
law.
Secondly, it was argued that his Honour erred in finding that
Regulation 18 of the relevant regulations operated to nullify the
effect of the registration of the Australian custody order in New
Zealand.
Thirdly, it was argued that the matter should be regarded as one
arising under the Court’s “welfare” jurisdiction and that, under
that jurisdiction, the Court was bound to apply the paramountcy
principle contained in s64(1)(a) of the Family Law Act.
Fourthly, it was argued that his Honour erred in failing to
consider and apply Article 3 of the UN Convention.
Fifthly, it was argued that his Honour erred in failing to
conclude that the relevant regulations were subject to the
provisions of s 64(1)(a) of the Family Law Act and in not applying
that section.
Sixthly, it was argued that his Honour erred in not finding that
there was a grave risk of physical or psychological harm or that
the children would be placed in an intolerable situation if they
were returned to New Zealand.
Turning to the first argument, Mr Rose said that Regulation 2(1)
of the relevant regulations defined removal in relation to a child
as wrongful removal within the meaning of the Hague Convention. He
conceded that if removal for this purpose was referable to the
situation at the time that the children left New Zealand then
there had been a wrongful removal within the meaning of the Hague
Convention. However, he said that the removal could no longer be
regarded as wrongful by reason of the Australian order and the
effect of its registration in New Zealand and that the operative
time for determination of the question whether the removal had
been wrongful was the time of hearing.
In support of this contention, he relied upon the decision of Kay
J in Barraclough and Barraclough supra. In that case the mother
took the children to Australia with the consent of the husband,
ostensibly for a holiday. It was in fact her intention to remain
in Australia with the children and she later informed the husband
of her intentions. He then commenced divorce proceedings in
England and sought the custody of the children. He subsequently
filed an application in the Family Division of the High Court that
the children be made wards of the Court. By reason of the filing
of that application, s41 of the Supreme Court Act 1981 (UK)
operated to make the children wards of Court from the time of
filing the application. The wardship order was later continued.
Kay J took the view, after referring to the definition of
“removal” in Regulation 2(1), that where wrongful retention is
alleged, Article 3 (a) requires that the retention must be in
breach of rights of custody of the other parent at the time of the
hearing of the application. He said at 76,316:
“The words `it is in’ in Art. 3(a) are words of
continuity and present tense in my view, and are not
properly capable of interpretation of referring only
to the time that the retention of the child
initially took place”.
In support of this interpretation, his Honour referred to the
decision of the House of Lords in D (a minor) v the Berkshire
County Council (1987) All ER 20 as to the interpretation of the
words “is being ” in English legislation in order to determine
whether they referred only to the present tense or to a continuing
situation. His Honour accordingly held that by reason of the
wardship, the father did not have a right of custody within the
meaning of the Hague Convention and dismissed his application.
In a sense, this argument is now somewhat academic in the present
case, but, as it was fully argued, we think that it is appropriate
that we deal with it.
The Hague Convention appears to treat removal and retention as
quite separate concepts, as indeed they must be, as is apparent
from the facts of Barraclough’s case where the removal of the
children from England was lawful whereas their retention, at least
to the stage of the making of the wardship order, was obviously
wrongful. In fact we think that Barraclough’s case was wrongly
decided on this point and that it should have been treated as a
case of wrongful retention regardless of the wardship order for
the reasons which appear hereafter.
However it is perhaps unfortunate that the Regulations in Reg.
2(1) define “removal” as meaning the “wrongful removal or
retention of a child within the meaning of the Convention”, thus
encompassing both removal and retention. However it is apparent
from the definition that it is the Convention that must be looked
at, to arrive at the meaning of these terms for the purpose of the
Regulations.
In this regard we agree with the argument of the Solicitor General
that the terms “removal” and “retention” are alternative and
discrete past events for the purposes of the Hague Convention and
we note that this is also the approach which has been taken by the
House of Lords in Re H and S (1991) 3 All ER 230.
In that case, the issues both before the Court of Appeal and the
House of Lords were firstly whether, even if removal was to be
regarded as a specific event which occurred on a specific
occasion, retention was a state of affairs beginning at a specific
time but continuing from day to day thereafter.
Secondly, whether removal and retention are mutually exclusive
concepts or whether removal can be followed by a continued
retention.
Thirdly, whether both removal and retention contemplate removal
from or retention out of the care of the parent having the
custodial rights, or removal from or retention out of the
jurisdiction of the courts of the child’s habitual place of
residence.
Both the Court of Appeal and the House of Lords, the leading
judgment of which was delivered by Lord Brandon, took the view
that by reason of Article 12 of the Convention, which refers to a
period of one year from the “date of wrongful removal or
retention”, both removal and retention are to be regarded as
events occurring on a specific occasion, for otherwise it would be
impossible to measure a period of one year from their occurrence.
For the same reason, Lord Brandon considered that once it was
accepted that retention refers to a specific event, it necessarily
followed that removal and retention are mutually exclusive
concepts. In this regard he said at page 240:
“For the purposes of the Convention, removal occurs
when a child, which has previously been in a state
of habitual residence, is taken away across the
frontier of that state, whereas retention occurs
where a child, which has previously been for a
limited period of time outside the state of its
habitual residence, is not returned to that state at
the expiry of such limited period.”
As to the third issue, he said that because of the nature and
purpose of the Convention, which is only concerned with
international protection for children from removal or retention
and not with removal or retention within the State of their
habitual residence, the removal or retention in question must of
necessity be from the jurisdiction of the courts of the State of
the child’s habitual residence.
We respectfully agree with those conclusions. We also note that a
similar approach has been taken in Scotland in Kilgour v Kilgour
1987 SLT 568 and in the USA in Rexford v Rexford (Alaska 1980) 631
P.2d 475, 478; Plas v Superior Court (1984) 155 Cal.App.3d 1008,
1015 [202 Cal.Rptr. 490, 494.].
This argument gains further force when regard is had to the
Travaux Preparatoires to the Hague Convention WMHFN 04 and in
particular to paragraph 108 which (in part) is as follows:-
“Several questions had to be faced as a result of
this approach: firstly the date from which the time
limit was to run; secondly, extension of the time
limit; thirdly, the date of expiry of the time
limit. As regards the first point, i.e. how to
determine the date on which the time limit should
begin to run, the article refers to the wrongful
removal or retention. The fixing of the decisive
date in cases of wrongful retention should be
understood as that on which the child ought to have
been returned to its custodians or on which the
holder of the right of custody refused to agree to
an extension of the child’s stay in a place other
than that of its habitual residence.”
The approach taken by Kay J in Barraclough’s case has also been
criticised on different grounds by the learned author of Conflict
of Laws in Australia (5th Ed.), P.E. Nygh at 409, where it is
suggested that this interpretation clashes with the express words
used in paragraph 16(3)(a) of the Regulations.
In our opinion, this criticism is well founded. Regulation
16(3)(a) provides as follows:
“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
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;”
Remembering for the purpose of the Regulations that removal
encompasses both removal and retention within the meaning of the
Hague Convention, it is nevertheless clear that the court is being
asked by the sub regulation in the case of a removal, to look at
the time when the removal occurred, and in the case of retention,
to look at the situation at the time that the retention first
occurred.
This construction gains further force from Regulation 18 insofar
as it requires a court not to refuse to make an order by reason
only of the fact of an existing custody order in force or
enforceable in Australia.
This Regulation clearly derives from Article 17 which provides as
follows:-
“The sole fact that a decision relating to custody
has been given in or is entitled to recognition in
the requested State shall not be a ground for
refusing to return a child under this Convention,
but the judicial or administrative authorities of
the requested State may take account of the reasons
for that decision in applying this Convention.”
Article 17 and Regulation 18 could have no effect if it could be
argued that the removal or retention was no longer wrongful by
reason of an existing order in Australia in favour of the
abducting parent.
We turn now to the second argument advanced by Mr Rose, to the
effect that his Honour erred in finding that Regulation 18
operated to nullify the effect of the registration of the
Australian custody order in New Zealand.
There can be no doubt that if the Australian custody order derived
its force from Australia alone, then his Honour was correct in his
application of Regulation 18 and Article 17 from which it is
derived. This is in fact now the situation, as the only extant
orders in force are interim orders, following the setting aside by
us of the orders of the Judicial Registrar.
If the orders of the Judicial Registrar had not been set aside
then some difficulty may have arisen from the legislative scheme
for the recognition and enforcement of custody and like orders
which was in force in Australia and New Zealand prior to both
Countries’ involvement with the Hague Convention.
Pursuant to s22B of the New Zealand Guardianship Act, and subject
to ss22C and 22E(1), so long as the registration of a foreign
order is not cancelled, the order may be enforced, varied or
discharged as if it was the order of a New Zealand Court made
under the Act.
Section 22C provides, in substance, that a New Zealand Court shall
not exercise jurisdiction in relation to a child who is subject to
a registered custody order unless the parties consent to the
exercise of the jurisdiction or 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.
Section 22E(1) provides that where a Court is satisfied that an
overseas custody order was either not, at the time of its
registration, enforceable in the country in which it was made or
has since registration ceased to be enforceable, the Court shall
not enforce the order.
The corresponding Australian provisions are to be found in s68 of
the Family Law Act, which are in similar, but not identical,
terms.
In effect, in neither Country are orders registrable or
enforceable if they are interim orders or notice of the
application was not served upon the other party and no other
person appeared upon the hearing of the application. However, in
this case, it is clear that the order of the Judicial Registrar
was not an interim order and that, although the husband did not
choose to appear, he was served with notice of the application and
the order was duly registered in New Zealand.
It is reasonably clear that the purpose of Article 17 of the
Convention is to avoid the situation where the abducting parent
could simply obtain an order in the country to which the children
were taken and rely upon it to avoid the operation of the
Convention.
It also appears that the reference to orders being enforceable in
the receiving country was intended to cover the situation where
the abducting parent had obtained orders of a similar nature in a
country that was not the habitual place of residence of the child
and then come to the receiving country.
The difficulty about the present case, had the order not been set
aside, would have been that the wife had the benefit of an order
which had the status of an order from a competent court in the
childrens’ habitual country of residence.
It is perhaps worthy of note that if the Australian order and its
New Zealand registration was to remain in force, the practical
effect of his Honour’s order under the Convention would have been
that the minute the wife and the children arrived in New Zealand,
she would have been entitled to return with them to Australia as
the order of the Judicial Registrar had extinguished the father’s
guardianship and custodial rights.
The Solicitor-General, in dealing with this issue, first referred
to Article 12 of the Hague Convention. He argued that the
peremptory nature of the last part of the first paragraph in
Article 12 clearly means that once the judicial or administrative
authority of the contracting State determines that the removal or
retention has been wrongful and the application is brought within
12 months, then subject only to the exceptions contained in
Article 13, there is a positive requirement to return the child
notwithstanding any orders which may or may not have been made
subsequent to the child’s wrongful removal or retention.
In further support of this argument the Solicitor-General said
that the making of the relevant custody order did not shut out the
issue of access nor could any custody order be regarded as a final
order. He accordingly said that to not order the return of the
children in these circumstances would be to shut out the husband
from access to the children, or from pursuing a further
application for custody in the future in New Zealand, which, he
submitted was clearly the correct jurisdiction in this case.
Mr Rose conceded that if the Court was against him on the issue of
the time at which the wrongful removal or retention is to be
considered and upon the alternative contentions advanced by him,
then the argument advanced by the Solicitor-General was correct.
In the present case, while this may have been a concession validly
made, it is unnecessary in the context of this case to finally
determine this issue and we do not propose to do so, although we
regard the arguments of the Solicitor-General as persuasive.
Before turning to the remaining arguments of the wife it is
necessary to say something about the status of international
instruments such as the Hague Convention and the Convention on the
Rights of the Child in Australian domestic law.
This subject was recently considered by the Full Court of the
Federal Court of Australia in Minister For Foreign Affairs v Magno
(1993) 112 ALR 529 at 534. That was a case which involved
consideration of the validity of a regulation made pursuant to s15
of the Diplomatic Privileges and Immunities Act 1967.
That section provides:-
“The Governor General may make regulations, not
inconsistent with this Act, prescribing all matters
required or permitted by this Act to be prescribed,
or necessary or convenient to be prescribed for
carrying out or giving effect to this Act.”
Section 7 of that Act also provides that certain provisions of the
Convention in question, namely the Vienna Convention on Diplomatic
Relations, have the force of law in Australia and sets out in
specific terms which Articles have such effect and makes specific
reference to their provisions. The Convention itself is set out
as a Schedule to the Act.
In the event, the majority of the Full Court (Gummow and French
JJ, Einfeld J dissenting) held that the Regulation in question was
valid. In the course of his judgment, Gummow J expressed what
might be regarded as a conservative view as to the effect of
international conventions and treaties on Australian domestic law.
In making this comment we stress that we do not do so in any
critical sense as the subject is not free from uncertainty, but
rather to find a starting point against which the submissions
before us can be measured. His Honour’s views, which appear at
pp534-535, may be summarised as follows.
Firstly, that if an international obligation involves enforcement
in the courts which is not already authorised by municipal law,
legislation is needed to make the necessary changes in the law or
to equip the Executive with the necessary means to execute the
obligation.
Secondly not all legislative approval of treaties or other
obligations entered into by the Executive renders the treaty
binding upon individuals within Australia as part of the law of
the Commonwealth or creates justiciable rights for individuals.
Thirdly, in cases where a convention has been ratified by
Australia, but has not been the subject of any legislative
incorporation into domestic law, its terms may be resorted to in
order to help resolve an ambiguity in domestic primary or
subordinate legislation.
Fourthly, where a statute has adopted the nomenclature of a
convention in anticipation of subsequent Australian ratification,
it is possible to refer to the convention to assist resolution of
an ambiguity, but not to displace the plain words of the statute.
Fifthly, in the exercise of a discretion and where the domestic
law upon its proper construction permits it, regard may be had to
an international obligation or agreement which has been ratified
by Australia, but not otherwise incorporated into domestic law and
where the domestic law is not ambiguous. In this regard, his
Honour pointed to the still unresolved difficulty, if it is
suggested that the obligation or agreement has been misconstrued
by the decision maker, as to whether this amounts to an error of
fact or law for the purpose of review or appeal.
Sixthly, in circumstances where Parliament has expressly given the
same meaning to a law as the meaning it bears in a particular
agreement or convention, it may attract the provisions of s15AB of
the Acts Interpretation Act 1901, where the agreement or
convention is “referred to” within the meaning of s15AB(2)(d). In
such circumstances consideration may be given to it not merely to
construe provisions which are ambiguous or obscure but for the
wider purposes set out in s15AB(1).
Gummow J concluded that the regulation making power conferred by
s15 of the Diplomatic Privileges and Immunities Act authorised the
making of regulations to give effect to s 7 of the Act, so as to
implement the obligations imposed on Australia under the Vienna
Convention and that the particular Regulation under attack was
valid.
French J, who was the other member of the majority, did not in his
judgment specifically address the general question of the
incorporation of international agreements and conventions into
domestic law. It is apparent from his judgment, however, that he
considered that the human rights and fundamental freedoms of
speech and assembly accepted in a number of international
conventions and specifically asserted in Articles 19 and 20 of the
Universal Declaration of Human Rights and Articles 19 and 21 of
the International Covenant on Civil and Political Rights, to both
of which Australia is a party, were relevant for consideration in
the context of domestic law (see pp 555-6).
He said at p557:-
The Diplomatic Privileges and Immunities Act 1967,
through s7, imposes duties upon the Executive which
are expressed in the words of the Convention itself.
Those words and particularly arts 22 and 29 are
capable of application to the full range of
constitutional statutory and administrative regimes
which are parties to the Convention. It is a
paradigm of an Act which in the words of the High
Court in Morton v Union Steamship Co of New Zealand
Ltd “lays down only the main outlines of policy.”
He concluded that s7 of the Act imposed on the Executive as a
matter of municipal law the obligations undertaken by Australia at
international law under the Convention and concluded that the
relevant regulation was, subject to certain reservations, valid.
In his dissenting judgment, Einfeld J did not differ from the
majority on the question of the incorporation of the Convention
into domestic law. However, he considered that other conventions
had achieved a similar status and that the validity of the
regulation in question under this Convention had to be considered
in light of them.
He drew a distinction between agreements or conventions which have
been ratified by the Executive Government only and those which
have been ratified by the Parliament, and a further distinction
between the latter and those which, like the International
Covenant on Civil and Political Rights, have been appended as
schedules to legislation such as the Human Rights and Equal
Opportunity Commission Act 1989.
He conceded that the High Court had made it clear in Dietrich v R
(1992) ALR 385 that ratification, either by the Executive or
Parliament, does not, of itself, result in the rights which it
embodies becoming enforceable as part of Australian domestic law.
However he pointed out that no argument had been put to the Court
as to the effect of the Human Rights and Equal Opportunity
Commission Act as Australian legislation embodying the Covenant or
part of it and that the argument before the High Court appears to
have proceeded upon the basis that there was no such
legislation-see p570.
In this regard it is of interest to note that in his dissenting
judgment in In Re Marion (1991) FLC 92-193 at 78,275 (later upheld
by the High Court on other grounds see Secretary, Department of
Health and Community Services (NT) v JWB and SMB (1992) 66 ALJR
300), Nicholson CJ, after reviewing the authorities and the
legislation, said in relation to the Declaration on the Rights of
Mentally Retarded Persons and other international instruments,
which are also incorporated into the Schedule of the same Act:-
“Contrary to what I said in In Re Jane, however, I
now think it strongly arguable that the existence of
the human rights set out in the relevant instrument,
defined as they are by reference to them, have been
recognised by the Parliament as a source of
Australian domestic law by reason of this
legislation.”
Having regard to the remarks of Einfeld J and to the fact that
this issue does not appear to have been considered by the High
Court in either Dietrich’s case or in Marion’s case on appeal, it
may be that this is still an open issue.
After referring to the decisions of the High Court in Australian
Capital Television Pty Ltd v Commonwealth (No 2) (1992) 108 ALR
577 and Nationwide News Pty Ltd v Wills (1992) 108 ALR 681,
Einfeld J concluded that these cases established that in Australia
there is a constitutional guarantee of freedom of speech, at least
in discussion of federal political matters or public affairs, and
that this, coupled with the provisions of the International
Covenant on Civil and Political Rights, meant that substantial
weight should be given to freedom of speech in interpreting the
Regulations in light of their purpose.
He accordingly concluded, by reason of his view that the
Regulations involved an unreasonable curtailment of freedom of
speech and for other reasons not relevant to present
considerations, that the Regulations were invalid.
In Dietrich’s case, Mason CJ and McHugh J referred with tentative
approval, but without deciding the issue, to what they described
as a “common sense approach” of having regard to international
obligations in helping to resolve uncertainty or ambiguity in
judge made law (pp392-3).
Toohey J was more positively in favour of this proposition
(pp434-5) and Brennan J was prepared to accept the International
Covenant on Civil and Political Rights as a legitimate influence
on the development of the common law (p404). The only Judge who
appeared to doubt the proposition was Dawson J (425-6). Further,
as Einfeld J pointed out in Magno’s case, in Mabo v Queensland
(1992) 107 ALR 1, Brennan J, (Mason CJ and McHugh J concurring),
said at p29:-
“The opening up of international remedies to
individuals pursuant to Australia’s accession to the
Optional Protocol (the First Optional Protocol to
the International Covenant on the Protection of
Civil and Political Rights) brings to bear on the
common law the powerful influence of the Covenant
and the international standards it imports. The
common law does not necessarily conform with
international law, but international law is a
legitimate and important influence on the
development of the common law, especially when
international law declares the existence of
universal human rights.”
It thus may be that this can, with some degree of confidence, be
added to the categories stated by Gummow J.
Further we consider, with respect, that Gummow J may have been too
restrictive in his third category in concluding that the terms of
the convention may only be resorted to for the purpose of
resolving ambiguity in domestic primary or subordinate
legislation. We think that such conventions may also be resorted
to in order to fill lacunae in such legislation, having regard to
the views of the High Court expressed in Dietrich’s case and those
expressed by Kirby P in Jago v District Court of NSW (1988) 12
NSWLR 558.
In applying these principles to this case, it is, we think clear
enough that the Hague Convention stands in a different position to
the Convention on the Rights of the Child.
We think that the latter Convention falls clearly within the third
category of conventions described by Gummow J in Magno’s case, in
that it has been ratified by Australia but has not been given
specific statutory recognition. It can thus be used to resolve
ambiguities in domestic primary and subordinate legislation. If we
are correct it can also be used to fill lacunae in such
legislation and to resolve ambiguities and lacunae in the common
law. As such it may well have a significant role to play in the
interpretation of the Family Law Act 1975 and in the common law
relating to children. However, as hereafter appears, we do not
think that its provisions have a significant role to play in the
present case.
The Hague Convention stands in a different light in that it has
been the subject of specific recognition by reason of s 111B of
the Family Law Act and the Regulations made under that section, to
which it is set out as a schedule.
The Solicitor General argued that it fell within the second
category of such conventions described by Gummow J, namely a
convention which had been given legislative approval but was not
binding upon and not creating justiciable rights for individuals,
except insofar as its terms had been specifically imported into
domestic law by the Regulations.
S111B clearly recognises that Australia has obligations under the
Convention and empowers the Executive to make such regulations as
may be necessary, inter alia, to enable the performance by
Australia of such obligations.
Although we find it unnecessary to decide the point in this case,
we think that it is at least arguable that this gives those parts
of the Convention as a whole which are not specifically
incorporated by the Regulations a higher status in domestic law
than a Convention falling within the third category described by
Gummow J.
Mr Rose argued that the Hague Convention was inconsistent with and
should be read as subject to, Article 3 of the UN Convention,
which succeeded it in point of time and that this necessitated
general consideration of the issue of the welfare of the child in
any Hague Convention application, regardless of whether or not s64
(1)(d) of the Family Law Act had any operation, although Mr Rose
also argued that it did so.
However, we think that this argument fails on two grounds.
Firstly, we do not think that the Hague Convention is inconsistent
with the UN Convention. The preamble to the Hague Convention is
as follows:-
“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, – “.
It is thus apparent that the Hague Convention is predicated upon
the paramountcy of the rights of the child. It proceeds upon the
basis that those rights are best protected by having issues as to
custody and access determined by the Courts of the country of the
child’s habitual residence, subject to the exceptions contained in
Article 13.
The fact that issues relating to the welfare of the child are not
relevant to a Hague Convention application is because such an
application is concerned with where and in what court issues in
relation to the welfare of the child are to be determined -see In
re A (a Minor) (1988) 1 Fam. L. R. (Eng) 365; Brown v Director
General (Nicholson CJ 6 September 1988, unreported); Gsponer v
Gsponer (1989) FLC 92-001.
In addition, the UN Convention, by Articles 11 and 35, clearly
contemplates the negative impact on children of their abduction or
non-return and the necessity of States concluding or acceding to
bilateral and multilateral agreements to prevent such occurrences.
Those Articles read as follows:
“Article 11
1. States Parties shall take measures to combat the
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.”
“Article 35
States Parties shall take all appropriate national,
bilateral and multilateral measures to prevent the
abduction of, the sale of or traffic in children for
any purpose or in any form.”
Even if it could be said that there was an inconsistency between
the Hague Convention and the UN Convention in this regard, the
Hague Convention would prevail, insofar as it has been
incorporated into Australian domestic law by s111B of the Family
Law Act and the Regulations made under that section, for the
reasons already discussed.
We now turn to Mr Rose’s third and fifth arguments, namely that
the matter should be regarded as an application made under the
Court’s “welfare” jurisdiction and thus subject to the paramountcy
principle contained in s64(1)(a), or alternatively that the
Regulations are inconsistent with that section and the section
should prevail.
If the proceedings are correctly characterised as being brought in
the Court’s welfare jurisdiction, about which we express no
concluded view, they are predicated, as we have said, upon the
basis that the Hague Convention and the Regulations contemplate
that it is in the best interests of the child for issues such as
custody and access to be determined in the courts of the country
of the child’s habitual residence unless the exceptions referred
to in regulation 16 are made out.
The issue in a Hague Convention application is purely one of
forum, subject to those exceptions, and the paramountcy principle
is accordingly not relevant.
The alternative argument may be disposed of shortly, in that it is
merely a variation of the argument which he advanced in relation
to the UN Convention, and as we have said, we do not think that
there is any inconsistency between the Convention and the
Regulations made under it and the paramountcy principle.
Finally, it was argued that his Honour was wrong in failing to
find that the exception contained in Regulation 16(3)(b) applied,
namely that there was a grave risk that the children’s return to
the applicant would expose the children to physical or
psychological harm or otherwise place them in an intolerable
situation.
In addition to the evidence to which we have already referred as
to past violence and the propensity for violence on the part of
the husband and his associates of the “Mongrel Mob”, it was sought
to introduce fresh evidence before us designed to reinforce this
evidence and to confirm the danger in which, it was asserted, the
wife would be in if she was to return to New Zealand.
Although it was not argued that the children would be in any
direct danger, it was put that if their mother was to be subject
to violence this would in turn have a grave effect upon their
welfare.
Although we would normally be reluctant to permit fresh evidence
of this type to be introduced on an appeal, we have decided to
admit it, going as it does to an important issue in the case, but
we do not think that it in any way advances the proposition that
his Honour was in error in finding that this exception had not
been made out.
As the Full Court pointed out in Gsponer’s case, supra, it must be
remembered that the “applicant” for the purposes of the
Regulations is not the husband, but the New Zealand Department of
Justice and the children are proposed to be returned to it and not
to the husband. Their disposition in New Zealand will be a matter
for the New Zealand Courts if they are returned to that country,
and if the wife’s allegations are accepted it would appear
unlikely that they would be returned to the husband.
Further, the evidence is almost entirely directed at the
prospective threat to the wife of a return to New Zealand and more
particularly to a return by her to Dunedin. We were informed by
counsel that, if the appeal is dismissed, the wife will return to
New Zealand with the children.
Whilst there is nothing that requires the wife to return to New
Zealand, it is obviously desirable, from the point of view of the
children, that she does so. However, there is no requirement
imposed by this Court that she or they must return to Dunedin. It
is open to her to return to another part of New Zealand where the
danger to her may be less and it is, of course, open to her to
seek orders from the New Zealand Courts, both for personal
protection and interim and final custody immediately upon her
arrival in New Zealand. She can also, if she wishes, seek leave
from the New Zealand Court to take the children to Australia.
As his Honour pointed out, New Zealand has a system of family law
and provides legal protection to persons in fear of violence which
is similar to the system in Australia.
It would be presumptuous and offensive in the extreme, for a court
in this country to conclude that the wife and the children are not
capable of being protected by the New Zealand Courts or that
relevant New Zealand authorities would not enforce protection
orders which are made by the Courts.
In our view and in accordance with the views expressed by this
Court in Gsponer’s case, the circumstances in which Regulation
16(3) comes into operation should be largely confined to
situations where such protections are not available. Similar
views have been expressed by the courts of other countries eg;
Segal J in the Superior Court of New Jersey in Tahan v Duquette
(24 Jun 92 unreported). In Re: A (A Minor) supra; Re: Evans
(Court of Appeal England, 20 Jul 88 unreported).
For us to do otherwise, would be to act on untested evidence to
thwart the principal purposes of the Hague Convention, which are
to discourage child abduction and, where such abduction has
occurred, 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.
These children are New Zealand citizens who have lived all their
lives in New Zealand and it is for a New Zealand Court to
determine their future.
Orders
(1) The appeal is dismissed.
(2) The orders of the Judicial Registrar of 28 June 1993 are
discharged and the wife’s application is adjourned to a
date to be fixed.
(3) Each party is at liberty to make written submissions as to
the costs of the appeal within 28 days.
Footnotes added by William M. Hilton, CFLS
——————–
1. As to the duty of counsel to advise the court of proceedings
concering the children in anothr forum see In re Carter
(Ala.App.1982) 412 So.2d 811, 812-813 (Attoreny may be
liable for contempt for knowing failure to inform); Florida
Bar v Littman (Fla. 1993) 612 So.2d 582, 582 (Public
reprimand by State Bar for failure to advise court).
2. See Art. 17 of The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on 25 Oct
1980 [The Convention]: “The sole fact that a decision
relating to custody has been given in or is entitled to
recognition in the requested State shall not be a ground for
refusing to return a child under this Convention, but the
judicial or administrative authorities of the requested
State may take account of the reasons for that decision in
applying this Convention.”
3. See Art. 13(b): “Notwithstanding the provisions of the
preceding Article, the judicial or administrative authority
of the requested State is not bound to order the return of
the child if the person, institution or other body which
opposes its return establishes that– * * * there is a grave
risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child
in an intolerable situation.”
4. Explanatory Report by E. Perez-Vera, Hague Conference on
Private International Law, Actes et documents de la
Quatorzieme session, vol. Ill, 1980, p. 426.