AUSTRALIA – PROKOP – 2002

AUSTRALIA – PROKOP – 2002 (Returned Denied) (Diplomatic Immunity) CENTRAL AUTHORITY v PROKOP. The mother takes the children to Australia for a visit and refuses to return to Zimbabwe. The Central Authority applies for their return. The court ruled that because diplomatic Immunity exists the courts in Zimbabwe would not be able to hear custody matters.

===========================================================

Dept Community Services v Prokop [Australia 2002]Sydney No. SY6417 of 2001
08 International Abduction [AUSTRALIA 2002]
===========================================================

FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
No. SY6417 of 2001

IN THE MATTER OF

DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES
Applicant

AND

PROKOP
Annabel Louise
Respondent Mother

Coram: The Hon Justice Le Poer Trench
Dates of Hearings: 9, 17 April and 3 May 2002
Date of Judgment: 22 May 2002
Date of Orders 22 May 2002

JUDGMENT OF THE HONOURABLE JUSTICE LE POER TRENCH

Appearances: Ms Hartstein of Counsel instructed by the
Legal Services Unit, Department of Community
Services, 164-174 Liverpool Road, Ashfield
NSW 2131 (DX 21212 Ashfield) appeared on
behalf of the Central Authority.

Mr Tookar of Counsel, instructed by Broun
Abrahams, Family Lawyers, Level 16, 338 Pitt
Street, Sydney NSW 2000 (DX 11551 Sydney
Downtown) appeared on behalf of the
respondent mother.

INTRODUCTION

1. These are proceedings which were commenced by Annabel
Louise Prokop (hereinafter referred to as “the mother”) on
26 November 2001 when she filed an Application in the Family
Court of Australia seeking orders in respect of the children
of the parties.

2. On 13 December 2001 an interim residence order was
made in favour of the mother and the matter was adjourned to
14 February 2002

3. On 5 February 2002 the Central Authority of the
Department of Community Services (hereinafter referred to as
“the Central Authority”) made an application for the return
of the children to Zimbabwe in terms of the Hague Convention
on the Civil Aspects of Child Abduction (“the Hague
Convention”).

4. The proceedings before me have run in relation to the
Hague Convention application

BACKGROUND HISTORY

5. Mark Stephen Prokop (hereinafter referred to as “the
father”) is 47 years of age having been born on 5 June 1954.

6. The mother is 39 years of age having been born on 9
April 1963.

7. On 10 August 1990 the parties were married at
Annapolis in Marylands in the United States of America.

8. The parties thereafter went through a second wedding
ceremony on 26 January 1991 in Taree in the State of New
South Wales, Australia.

9. During the course of the marriage there were three
children born to the union. Those children are:

(a) Maxwell Stephen Prokop (“Maxwell”) born on 20
December 1994;

(b) Louise Prokop (“Elenor”) born on 27 January 1996, and

(c) George William Prokop (“George”) born on 4 November
1997.

10. The parties finally separated on 23 November2001.

11. Following their marriage the parties lived in
Connecticut in the United States of America.

12. In October 1992 the father obtained employment with
the United States Department of State.

13. In March 1993 the father was posted to the US Embassy
in Manila and the parties lived in the Philippines.

14. On 20 November 1994 the parties’ first child Maxwell
was born in Taree in New South Wales.

15. Following the birth of Maxwell the parties lived in
Washington DC, Tokyo Japan, Fairfax Virginia, and finally in
Harare Zimbabwe as and from August 1998. At that time the
parties lived in the US Embassy residence at Harare.

16. On 23 November 2001 the mother and the three children
of the marriage traveled to Australia for the purposes of
visiting the mother’s family.

17. The mother says that in the latter part of 2000 or
early 2001 she resolved to end the marriage.

18. There seems little issue with the fact that although
the father anticipated that the mother and three children of
the marriage would return from Australia after their visit
in November 2001 the mother had planned that they would not
return.

19. The father came to Australia in December 2001 as part
of a planned three week holiday.

20. On 10 December 2001 the father was served with an
application for residence.

21. On 13 February 2002 orders were made by consent
restraining the removal of the three children of the
marriage from Australia and staying the residence
application pending the determination of the Hague
Convention application listed for hearing on 9 April 2002.

22. In late March 2002 the parties endeavoured to settle
their outstanding issues with the assistance of a mediator.

23. In opposition to the application requiring the three
children of the marriage to return to Zimbabwe the mother
argued a number of points so as to convince the Court that
under Regulation 16 of the Family Law (Child Abduction
Convention) Regulations 1986 (“the Regulations”) it should
refuse to order the children’s return.

24. The arguments addressed the considerations embodied
in Regulation 16(3) of the Regulations.

25. It was argued that the father was not actually
exercising rights of custody when the three children of the
marriage were removed to Australia.

26. It was conceded that the father had consented to the
three children of the marriage being removed from Zimbabwe
but in circumstances where he did not understand the mother
was proposing not to return them. His argument is that they
have been retained in Australia against his objection.

27. It was argued that it was not desirable to make the
orders sought in the application.

28. It was further argued that there would be a grave
risk to the three children of the marriage if they were
returned to Zimbabwe.

29. The mother further argued that the return of the
three children of the marriage to Zimbabwe would offend
against the fundamental principles of Australia relating to
the protection of human rights and fundamental freedoms.

30. The final argument made by the mother was that to
return the three children of the marriage would be to place
them in an intolerable situation. It is in relation to this
last point that both parties have applied their greatest
efforts.

RELEVANT LEGAL PRINCIPLES PURSUANT TO THE REGULATIONS

31 In the circumstances of the case I conclude that it
is only necessary for me to deal with the arguments raised
by both parties under Regulation 16(3)(b)

32. The argument on behalf of the mother was that to
return the three children of the marriage to Zimbabwe would
place the children in an intolerable situation

33 It is common ground between the parties that the
father through his employment with the US Government
attracts to the whole family the diplomatic immunity against
the laws of the country to winch he and his family are
posted. This diplomatic immunity operates so as to exclude
from jurisdiction any action whether criminal or civil
relating to any member of the father’s (diplomat) family.
This of course includes the three children of the marriage.

34. In addition to this aspect of diplomatic immunity and
consequent thereto the unavailability of any court in
Zimbabwe to hear and/or determine any dispute relating to
the three children of the marriage in the absence of the
immunity being waived, there is the practical aspect that
the father has been posted to Papua New Guinea. He only has
until July to serve in Zimbabwe.

35. The father stated in his Affidavit filed in Court on
3 May 2002 that he is a US diplomat by profession with a
current posting to the US Embassy Harare, Zimbabwe In August
2002 he is due to assume a new posting in the US Embassy
Port Moresby in Papua New Guinea. This posting will occur
after a home leave travel to the United States.

36. The father says that he has spoken to management at
Harare, Zimbabwe and they have indicated that there is no
objection to him staying there a few extra weeks beyond the
8 July 2002 scheduled departure. The successor does not
arrive until late August so that the house is still
available. He says “my ongoing post will kick and scream at
the delay but for humanitarian grounds will just have to
accept the extended vacancy”.

37 All this raises the argument made by Mr Tockar on
behalf of the mother that it would be an intolerable
circumstance to require the return of the three children of
the marriage to Harare, Zimbabwe only to be faced with a
circumstance where the father will be required to leave that
country and reside in Papua New Guinea from August of this
year. It is also pointed out that under Zimbabwean law the
mother has the right to custody of the three children of the
marriage (the equivalent of residence under Australian
legislation) upon the separation of the parties. The
underlying suggestion to all this is that the father in
reality only seeks contact and it would be intolerable for
the three children of the marriage and the mother to be
locked into a circumstance where they are required to live
in Zimbabwe while the father resides half a world away.

38. At the request made on behalf of the Central
Authority an adjournment was granted to allow the Central
Authority to consider the argument in relation to the
father’s diplomatic immunity.

39. When the matter was re-listed the Central Authority
still had been unable to obtain any relevant information
from the United States State Department.

40. The matter again came before me on 3 May 2002 and at
that time material was made available by the United States
State Department. Tendered before me and marked Exhibit “C2”
is a policy document which sets out information about the
immunities of the United States representatives and
establishments abroad.

41. By paragraph 221.1.a, contained in Exhibit “C2” it is
specified that the families and households of diplomatic
officers enjoy the same immunity as the diplomatic officer.

42. In paragraph 221.1.b, contained in Exhibit “C2” the
United States Government points out that some governments
refuse to extend immunity to members of the mission other
than diplomatic officers, even though they are nationals of
the sending State. Nothing has been raised in this case to
suggest that Zimbabwe falls within this category.

43. My attention was drawn to paragraph 221.5 (waiver of
immunity) contained in Exhibit “C2”. The waiver requires the
prior expressed consent of the State Department. The
paragraph sets out some of the procedures involved in the
consideration by the State Department and other officers of
the United States Government. The process, on the face of
it, looks as though it may be quite involved and there is no
indication of how long it would take for any waiver to be
consented to by the United States Government.

44. Additionally, paragraph 221.5(1) contained in Exhibit
“C2” says that a key factor in determining whether or not
immunity may be waived is the potential impact on the
interests of the United States Government. It was pointed
out by counsel on behalf of the mother that the United
States Government may well form the view that its interests
may be impacted upon if one of their key personnel is tied
up in litigation in Zimbabwe and unable to take up a post
allocated in Papua New Guinea.

45. It was further pointed out by counsel for the mother
that under this same paragraph but under the further
paragraph 221.5(3) the requirement of waiver in private
domestic relations matters requires the consent of both
parties.

46. Further, in paragraph 221.5(3)d, the following
appears “waiver of immunity will normally be granted to
allow a domestic relations action to be pursued in the host
country if both parties consent and if the prosecution of
the action will not adversely affect the interests of the
United States Government”.

ASSESSMENT OF RELEVANT LEGAL MATTERS

47. The mother has made it clear through her counsel that
she will not consent to having her domestic dispute
determined by Zimbabwean courts. That would then appear to
be the end of the matter so far as waiver of the immunity is
concerned.

48. Even if this was not the case the father has not said
in any affidavit, or otherwise that he has applied for a
waiver or consent to a waiver of diplomatic immunity. He did
indicate that in his opinion this would not be a problem.
Thereby indicating that he thought a waiver would be
provided by the United States Government.

49. Mr Tockar says that in those circumstances then it is
intolerable to conceive of a situation where the three
children of the marriage are returned to Zimbabwe and that
there is no court in that country which can determine any
dispute as to residency and/or contact due to the existence
of the immunity.

50. In my view this is a compelling argument.

51. In the decision of DP v Central Authority; JLM v NSW
Dept of Community Services [(2001) FLC 93-081] Kirby J said
as follows

“In the ordinary case, the scheme of the
Regulations (and of the Convention) envisages
that it will be for the authorities (judicial
or administrative) of the country of the
child’s habitual residence to determine the
implications for custody and residence orders
of other risks and what is required by other
situations”

52. Further His Honour said

“In the ordinary case, the assumption upon
which the convention has been written (and
Australia has subscribed to it and implemented
it by the Regulations) is that participating
countries will afford laws and judicial or
administrative remedies that are acceptable so
as to permit reciprocal orders of return to be
made in such cases.”

53. The above makes it clear that there must be available
to the parties in the country of habitual residence a
judicial or administrative remedy. If for some
extraordinary reason there is no Court available (it being
presumed that Australia would not be a signatory to an
arrangement with a country which did not have a similar
legal system and application of child focused laws and
remedies) then at the very least it would create an
intolerable situation for the child.

54. In the decision of the majority of the Judges in DP v
Central Authority; JLM v NSW Dept of Community Services the
following appears:

“The Full Court said there was no evidence
before the primary judge from which he could
conclude that the mother would be unable to
contest a case in the Mexican family law
jurisdiction. The unchallenged evidence of
the mother at the trial was, however, that she
bad no financial resources to fund proceedings
in Mexico and that her belief (founded on the
experience of a friend) was that it may be
necessary to pay bribes to succeed in any such
proceedings. In this respect, then the Full
Court was plainly wrong and a foundation for
the undertakings it required as a condition
for granting the order of return (that there
would be litigation in Mexico about the
residence of the child which could be
contested by the mother) was not there.”

55 That there will be or could be litigation in the
country of habitual residence if the child is returned
appears a fundamental plank in the construction of the
convention as a whole. It would certainly be an intolerable
situation for a child if there was no avenue for the
judicial or administrative consideration of matters of his
welfare in the country to which his return is required. It
would also, in my opinion, be possible to decline to return
a child in such circumstance under the exception contained
In Regulation 16(3)(d).

56. The majority of the Court in DP v Central Authority;
JLM v NSW Dept of Community Services [(2001) FLC 93-081]
determined that there was nothing to warrant a conclusion by
the Full Court that the words in Regulation 16(3)(b) should
be given a narrow construction. Kirby J talked of a
“mechanical or narrow construction of the factors which may
be taken into account (under the Regulation) must be
avoided”.

CONCLUSION

57. I conclude that the circumstances of the diplomatic
immunity is decisive of the issue and it leads me in the
proper exercise of my discretion with only one conclusion
and that is to refuse the request for the return of the
three children of the marriage to Zimbabwe.

58. Because I find this matter such a compelling one, I
do not need to consider in great detail the other areas of
argument raised by counsel on behalf of the mother in the
proceedings.

59. It may well be that in addition to this one
compelling point there are other reasons why the three
children of the marriage should not, in the proper exercise
of my discretion, be required to return to Zimbabwe.

60. One matter that does loom large and which I conclude
would also convince me that the three children of the
marriage should not return is the fact that the father will
be leaving Zimbabwe within a very short space of time.

61. In my opinion such a matter would create an
intolerable situation for the three children of the
marriage. They may well find themselves locked into a
circumstance where the mother is prevented from leaving
Zimbabwe by order of a court. The father does not live in
Zimbabwe any longer and lives such a distance from Zimbabwe
that it is impossible for him to have frequent contact with
the children. This would place the children in a country
which is predominantly foreign to their origins with a
mother who is trapped, stressed and unhappy and a father who
is unable to assist in their day to day care.

62. In my opinion such a circumstance would be
intolerable.

63. For all the above reasons I conclude that the
Application lodged by the Central Authority on 5 February
2002 should be dismissed and I will so order.

64. The effect of the orders I intend to make is to end
the stay which was in operation pursuant to orders made on
13 February 2002 of the mother’s residence application. I
will therefore order that that application be listed in a
Duty List – 14 days after the date upon which the orders I
intend to make herein are made.

ORDERS

65. The orders of the Court are:

1. That the Application filed by the Central Authority
of the Department of Community Services on 5 February 2002
be dismissed.

2. That the residence proceedings commenced by the
mother be listed for directions before a Registrar of the
Court at 9.45 am on 6 June 2002.

===========================================================
Comments by Wm. M. Hilton.
22 May 2002

This is the second of the two known cases on the affect of
diplomatic immunity, the other being from the United
Kingdom: Re P (Minors) (UK 1997, HIGH COURT OF JUSTICE –
FAMILY DIVISION, No. CP-1316-1997; 8 International Abduction
[UK 1997].

In both cases, but for different reasons, the return under
The Convention was denied.

In this decision there seems to be two (2) lines of
reasoning followed by the court in denying the return of the
children to their Habitual Residence (H/R) of Zimbabwe:

1) That the father would no longer be living in Zimbabwe
and therefore the mother and child (if returned to Zimbabwe)
would be on their own so to speak.

2) Because of he diplomatic immunity there would be no
courts available to the family in Zimbabwe.

Neither of these reasons, in my opinion, have a sound basis.

The Perez-Vera report, at 110, addresses itself to the first
point, that the parent would no longer be in the H/R of the
child:

“110 One problem common to both of these
situations was determining the place to which
the child had to be returned. The Convention
did not accept a proposal to the effect that
the return of the child should always be to
the State of its habitual residence before its
removal. Admittedly, one of the underlying
reasons for requiring the return of the child
was the desire to prevent the ‘natural’
jurisdiction of the courts of the State of the
child’s residence being evaded with impunity,
by force. However, including such a provision
in the Convention would have made its
application so inflexible as to be useless. In
fact, we must not forget that it is the right
of children not to be removed from a
particular environment which sometimes is a
basically family one, which the fight against
international child abductions seeks to
protect. Now, when the applicant no longer
lives in what was the State of the child’s
habitual residence prior to its removal, the
return of the child to that State might cause
practical problems which would be difficult to
resolve. The Convention’s silence on this
matter must therefore be understood as
allowing the authorities of the State of
refuge to return the child directly to the
applicant, regardless of the latter’s present
place of residence.”

In this case the father will be in Papua, New Guinea within
a reasonable period of time and the children could be
returned to him at that location.

The second reason, the issue of diplomatic immunity,
admittedly, has at least a smidgen of a colorable basis for
its application.

In the discussion of this matter it was stated that if both
parties waived diplomatic immunity and there was concurrence
by the US Department of State, that such immunity would be
waived.

The discussion also shows that while it would appear that
the father would waive his immunity, the mother flatly
states she would not.

This position of the mother should not be given any weight
since it is common ground that parties cannot create
circumstances that would block the return of the children to
their H/R.

The one area that is unknown is whether or not the US
Department of State would permit the waiver of diplomatic
immunity even if both parties would so stipulate. The text
of the decision would leave one to believe that this could
occur but no one has “checked it out”