AUSTRALIA – OTTENS – 1988

AUSTRALIA – OTTENS – 1988: (1988) (Return ordered) OTTENS v OTTENS, Mother took children to Australia. Mother is ordered to return the children to Canada.

Ottens and Ottens (Australia 1988)Family Court at Melbourne No M 9653 of 1988
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Johannes Ottens, Husband

and

Diane June Ottens, Wife

and

Peter Johnstone, Applicant
Director General
Department of Community Services
Victoria State Central Authority

Family Court of Australia at Melbourne, No. M 9653 of 1988, 21
Dec 1988

Judgment by the Hon. Justice Frederico

This is an application filed on 13th December 1988 by
Peter Johnstone, the Director-General of the Department of
Community Services of Victoria. The application is brought under
the Family Law (Child Abduction) Regulations which have been made
pursuant to section 111(b) of the Family Law Act. Those
Regulations give effect in Australia to the provisions of the
Hague Convention on International Child Abduction.

The circumstances in this matter are that there are two
children of the marriage of Mr and Mrs Ottens: Hilary who was
born on 2nd March 1980 and Philip who was born on 4th May 1983.
The parents were married in Vancouver in 1970 and thereafter
lived in Ontario from 1975. Both children were born on Ontario
and are Canadian citizens. The husband is a Canadian citizen; the
wife is an Australian citizen.

The marriage had apparently been unhappy for some time.
During the middle part of this year the wife formed the intention
of removing the children from Canada for the purposes of a
holiday in Hawaii of which holiday was also to be attended by the
wife’s parents from Australia. Whilst she was in Hawaii the wife
formed the intention of not returning the children to Canada. It
appears from the material before the Court that although the
husband anticipated the return of the children from Hawaii on
30th August he received a telephone call on that day from the
wife informing him that she was now in Australia. She has since
retained the children in Australia and is living at the home of
her parents in Melbourne.

Problems relating to unilateral removal of children from
one country to another have bedeviled the courts for some time
and reported decisions on this subject stem from McKee v. McKee
(a Privy Council decision in (1951) AC 352) and in more recent
cases such as Schwartz and Schwartz (1985) FLC 91-618. Courts
both in this country and overseas have adopted an increasingly
consistent response to such cases and have developed, it would
seem, a strong preference that issues as to custody of children
are best determined in the courts of the country which has been
their normal residence.

The attitude of the courts has now been codified in the
Convention and it is appropriate to quote from Article 1 of that
Convention:

“The objects of the present Convention are:

a to secure the prompt return of children wrongfully
removed to or retained in any Contracting State; and

b to ensure that the rights of custody and of access
under the law of one Contracting State are effectively
respected in the other Contracting States.”

Those aims are implicit in the Regulations which have now been
enacted.

Regulation 11 relates to an application for return of a
child abducted from Australia and provides a certain form of
application or request which is set out in Schedule 3 to those
Regulations.

Strangely, however, regulation 13 which relates to an
application for the return of a child abducted to Australia does
not prescribe any specific form of request or application.
Regulation 13 merely provides:

“Where the Commonwealth Central Authority receives an
application in respect of a child removed from a
convention country to Australia and is satisfied that the
application is an application to which the Convention
applies and is in accordance with the requirements of that
convention, the Commonwealth Central Authority shall take
action under the Convention to secure the return of the
child to the applicant.”

It is to be noted that Mr Johnstone is Director-General of
the Department of Community Services of Victoria but regulation 9
provides that he has all the duties and may exercise all the
powers and perform all the functions of the Commonwealth Central
Authority.

A preliminary matter has arisen during the course of
argument as to whether there has been an application received by
the Central Authority in Australia pursuant to regulation 13.
Annexed to the application and admissible pursuant to the
provisions of regulation 23, is a document which appears to be a
photographic copy of a document in the form of Schedule 3.

However assuming that it is a replica of such a document,
the words “- application in accordance with the Hague Convention
on the civil aspects of international child abduction for the
return of a child abducted from Australia” have been omitted.
The matter of concern then has been whether the applicant has
proved the receipt of an application in accordance with
regulation 12.

Miss Symon on behalf of the Director-General sought an
adjournment to enable production of the original document which
was received, such an adjournment being necessary for her to
formally prove such a document. However, it appeared to me that
there would be prejudice to the wife by way of costs were I to
grant such an adjournment and of course the Regulations
themselves provide that the Central Authority is immune from any
order for costs. As the Authority has chosen to rely on that
provision it appears to me that it would be unjust and unfair to
the wife to grant the adjournment that is sought as clearly the
wife would suffer significant legal costs as a result thereof.

In any event, I am satisfied that I should accept the
documents which are attached to the application of the
Director-General as a request for the return of the children.
They are signed by Johannes Ottens as applicant. Each of the
documents gives particulars in respect of each of the relevant
children, and on the second page of each document details of the
person whom the child is to be returned to. It seems to me in all
those circumstances the only reasonable conclusion I can come to
is that they are indeed applications or or requests for the
return of children and I will act on that basis.

Mr Udorovic, on behalf of the wife, then opposes an order
for the return of the children on the basis of the provisions of
Regulation 16(3)(a) and (b) which provide as follows:

“(a) the person, institution or other body having the
care of the child in the convention country from
which the child was removed was not exercising
rights of custody at the time of the removal of
the child and those rights would not haye been
exercised if the child had not been removed, or
had consented to or acquiesced in the child’s
removal.

(b) there is a grave risk that the child’s return to
the applicant would expose the child to physical
or psychological harm or otherwise place the child
in an intolerable situation;”

Section 20(1), (2) and (3) of the Childrens Law Reform Act
of Ontario provides as follows:

(1) Except as otherwise provided in this Part, the
father and the mother of a child are equally
entitled to custody of the child.

(2) A person entitled to custody of a child has the
rights and responsibilities of a parent in respect
of the person of the child and must exercise those
rights and responsibilities in the best interests
of the child.

(3) Where more than one person is entitled to custody
of a child, any one of them may exercise the
rights and accept the responsibilities of a parent
on behalf of them in respect of the child.

It is unnecessary to set out the following provisions.
Furthermore, it is clear, as a matter of private international
law and in any event from the provisions of section 22 of the
Ontario Act, that the Canadian court has jurisdiction in relation
to the matter.

Following the removal of the children from Canada, the
husband brought an application in the Supreme Court of Ontario
and an order was made on 4th November 1988 by Justice Walsh
(Supreme Court of Ontario, Canada) which after setting out by way
of preamble the findings of the Court in relation to the history
of the matter which in effect embodied what I have already said,
provided as follows:

“1. THIS COURT ORDERS that the Respondent (namely the
wife) forthwith return the said children, Hilary
June Ottens, born March 2, 1980 and Philip Hans
Victor Ottens, born May 4, 1983 to the City of
Ottawa, Ontario, Canada.

2. THIS COURT ORDERS that forthwith upon the said
children being returned to the jurisdiction the
Master of the Court shall, upon notice and on the
merits, determine all matters as to the interim
custody of and access to the said children,
pending the final determination of those issues by
this Court on Monday, January 30, 1989.

3. THIS COURT ORDERS that if the said children are
not returned to the City of Ottawa by the
Respondent within 15 days of service of this Order
upon her personally or substitutionally as
hereinafter provided, the Applicant, Johannes
Ottens, is hereby granted custody of both
children, for the sole purpose of his arranging
for their prompt return to Ontario, so this Court
may exercise its jurisdiction.”

Now an application under the Regulations may be brought by
a Prescribed Authority in accordance with those Regulations or by
an individual. In this matter, it is apparent that the husband is
a person competent to bring such an application, he being a
custodian of the children prior to their removal from Canada, and
the custodian of the children pursuant to the order of the
Ontario Supreme Court at the present time.

The Court has a discretion to refuse to make an order
under certain circumstances and those are the circumstances
relied upon by Mr Udorovic. Firstly, he submits that the evidence
discloses that the husband had consented to or acquiesced in the
children’s removal. Well, now, it is quite clear that the husband
acquiesced in their removal from Canada in that he consented to
them traveling to Honolulu, in Hawaii, for a holiday.

However, the Convention and the Regulations also relate to
the retention of the children and it is quite clear that even if
I am wrong in finding, as I do, that the husband at no time
consented to the removal of the children on, as it were, a long
term or permanent basis, in any event he has not consented to
their being brought to Australia.

The question, however, is has he acquiesced in the fact
that they are now in Australia. Mr Udorovic refers to paragraph 7
of his affidavit, filed in the Supreme Court of Canada, in which
he states that he had “no concrete expectation” that they would
not be returned; that prior to the wife leaving Canada with the
children, he informed her that he had telephoned Legal Aid and
that he would not fight the prior issue of primary custody in the
event of a separation occurring between the parties. Paragraph
16 of his affidavit is to the effect that he sent summer clothing
and toys to the children by surface mail when they were in
Australia, and in paragraph 25, that he did not immediately
commence an application for the return of the children.

However, I think it is appropriate to set out the
husband’s explanation for the delay that has taken place which is
given in paragraph 25 of the affidavit:

“I did not immediately commence an application on the
advice of counsel. I (i) was intent on exploring
non-litigious ways of resolving our differences; (ii)
retained the hope that my wife might yet arrive back in
Ottawa after a reconsideration of the matter; (iii) did
not wish to act in a precipitous manner. I have not
delayed in the commencement of these proceedings, nor
acquiesced in any manner whatsoever in the wrongful
retention of my children by my wife.”

Mr Udorovic further relies upon paragraph 7 of the wife’s
affidavit, sworn 21st December 1988, and filed this day in which
she states that before she left Canada the husband had told her
that if she were not to return, he would not seek custody of the
children. And paragraph 9 and 10 to similar effect, that he
would not contest custody. Of course, the husband is not
necessarily seeking final custody of these children by his
current application. What he is seeking is their return to
Canada.

Now, the circumstances are that when the wife left for
Hawaii it was on the basis of having a holiday. It was not until
she was in Hawaii that she determined to bring the children to
Australia. She did not consult with the husband following her
conclusion that it was in the best interests of the children that
they should live in Australia. In those circumstances, and
notwithstanding the other evidence to which I have referred, I am
unable to find that the husband has acquiesced in the children
being brought to or retained in Australia and certainly I do not
find that he has consented. In any event, it does not necessarily
follow even were I to make such findings that I should refuse to
make an order under sub-regulation 1 or 2.

Mr Udorovic then submits that if an order is not made,
there would be a grave risk that the child’s return to the
applicant would expose the child to physical or psychological
harm or otherwise place the child in an intolerable situation.
He refers to the provisions of regulation 16(3)(b).

For me to have power to exercise a discretion to refuse to
make an order under the Regulations, I would have to be satisfied
that there is a grave risk that the return of the children to the
applicant would expose the children to one of three situations.
One, a situation of physical harm; two, a situation of
psychological harm; or three, an intolerable situation.

Despite Mr Udorovic’s arguments to the contrary, it
appears to me to be quite clear on the authorities that each of
the first two categories, namely physical harm and psychological
harm, must be interpreted by having the words of emphasis “an –
intolerable situation” in mind. It is not the grave risk of ny
physical or psychological harm. It must be a grave risk of
physical or psychological harm of a substantial nature.

In this regard, Mr Udorovic relies on allegations made by
the wife in her aforesaid affidavit and I refer to paragraphs 4,
5 and 6 of a general atmosphere of bullying and abuse which has
prevailed in the matrimonial home in Ontario for some significant
time. It is hard to be satisfied from those allegations that the
children would in any event be exposed to a grave risk of
physical or psychological harm or an intolerable situation as the
husband has not had the opportunity of answering those
allegations.

But it is not the purpose of the Convention that this
matter should be stayed to enable the husband the opportunity of
coming to Australia and appearing before the Court in order to
refute those allegations. As I have said, the design of the
Convention is to affect the speedy return of children to the
country from which they have been taken.

But in any event, I am unable to find that there is any
risk to these children in their being returned to Canada. Canada
is a country where the rule of law applies. It has a Supreme
Court which would exercise a paternal jurisdiction over children
who come before it. It would determine the appropriate
arrangements of the children who come before it having regard to
the appropriate considerations of welfare of the children.

The order of the Supreme Court of Canada is designed so
that forthwith upon their return to Canada the children can be
brought before a Master of the Supreme Court who can determine
what are the appropriate interim arrangements to be made pending
the final determination of questions of custody on 30th January
1989. In those circumstances, I am unable to accept that there is
any risk at all to these children in being order to be returned
to Canada.

Of course, it is open to the wife to accompany them on
their return to Canada if they wished and no doubt with her legal
advisors will make immediate arrangements prior to the return so
that if necessary the matter can be brought before the Canadian
Court immediately upon their return. So therefore I do not find
the allegations made by Mr Udorovic as to consent or acquiescence
in removal, or as to the risk of physical, psychological harm or
intolerable situation to be made out. And even if I am wrong in
this it does not appear to me that this is a case in which I
should exercise my discretion to refuse to make an order in
accordance with the Regulations.

This is a case where it would seem to me there are
compelling reasons why the children should be ordered to return
to Canada. They were born in that country, they have lived there
throughout their lives. The parties have lived in Canada since
their marriage. It appears to me that the appropriate forum to
determine the future custody and the future access arrangements
is the Supreme Court of Ontario. Finally, of course, if the wife
does not propose to go to Canada she can alert the child welfare
organisations in Canada to the situation.

Therefore it is ordered on the application of Peter
Johnson, Director-General of the Department of Community
Services, Victoria, a State Central Authority, pursuant to the
Family Law Child Abduction Convention Regulations, such
application being filed l3th December 1988:

(1) That the wife return the children of the marriage
HIlARY JUNE OTTENS born on the 2nd day of March 1980
and PHILLIP HANS VICTOR OTTENS born on the 4th day of
May 1983 to the Dominion of Canada to the husband
Johannes Ottens at 20 Welby Court, Ottawa, Ontario,
Kivoji in the said Dominion at 5.00 p.m. on Tuesday
the 3rd day of January 1989.

(2) That whilst remaining in the Commonwealth of Australia
the said children remain in the custody of the wife at
16 Winston Road, Donvale in the State of Victoria
under the control of the applicant.

(3) That the wife be responsible for any traveling
expenses in respect of the return of the said children
to the said Dominion of Canada.

(4) That the application of the wife filed this day be
struck out.

(5) That general liberty to apply be reserved to the
parties.

BY THE COURT