AUSTRALIA – SOARES – 1989

Court: FAMILY COURT OF AUSTRALIA
Number: 163 Fam C of A [1989]

Applicant: Wife

and

Respondent: Husband

Date: 21 Apr and 15 May 1989

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In the Marriage of A F and M SOARES

FAMILY COURT OF AUSTRALIA

SIMPSON, FREDERICO and GRAHAM JJ

21 April, 15 May 1989 – Parramatta

Custody – Jurisdiction – Refusal to exercise jurisdiction in
custody application where child in Portugal – Whether refusal was a
proper exercise of discretion.

Jurisdiction – Custody – Discretion – Refusal to exercise
jurisdiction in custody application where child in Portugal –
Whether refusal was a proper exercise of discretion.

After a holiday visit to Portugal the elder child of the parties
remained there in the care of the husband’s parents. The husband,
the wife and the other child of the parties returned to Australia
in October 1986.

The parties separated in May 1987 and the wife sought an order for
custody of the elder child who was still in Portugal. The trial
judge decided in June 1988 that he should not, as a matter of
discretion, exercise the court’s jurisdiction, exercise the court’s
jurisdiction and dismissed the application. The wife appealed.

The trial judge was concerned about the absence of any reliable
evidence of any “wishes expressed by the child” in relation to
custody and that there was no guarantee that a custody order in
favour of the wife would automatically be enforced in Portugal.

Held, per curiam, in allowing the appeal:

(i) In relation to any wishes of the child it was open to the trial
judge, as the husband was within the jurisdiction and had property
here, to order him to take steps to have the child returned to
Australia. Thereafter both the husband and wife could have access
to the child with the final determination of the custody
application taking place after the child had had a reasonable
opportunity to find her feet in this country and had re-established
her relationship with her parents. The other matters prescribed
under s 64(1)(bb) of the Family Law Act 1975 (Cth) should not cause
any great difficulty in the hearing of proceedings in this court.

(ii) There was no evidence that the Portuguese courts would either
refuse to enforce or would necessarily enforce a custody order of
this court. As the Family Court of Australia had personal
jurisdiction over both parties it could not be said that there was
no likelihood of a custody order of this court being enforced.

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389,
referred to.

In the Marriage of Taylor (1988) 12 Fam LR 423; [1988] FLC 91-943,
applied.

(iii) The trial judge’s decision was clearly wrong in that it was
“so unreasonable or plainly unjust” that the only conclusion open
was that there had been a failure by the trial judge to properly
exercise his discretion.

Appeal

This was an appeal from an order that a wife’s application for
custody of one of the children of her marriage be dismissed.

Mr. Mater for the appellant (wife).

Mr Serisier and Mrs D’Souza for the respondent (husband).

Cur. adv. vult.

Simpson, Frederico and Graham JJ. This is an appeal by the wife
against a decree made by Rourke J on 17 June 1988.

On that date his Honour ordered, inter alia, that the wife’s
application for custody of one of the children of the marriage, H,
be dismissed.

The parties were married in Australia on 19 February 1977. Both
were born in Portugal — the husband on 19 February 1958 and the
wife on 26 July 1960. The wife came to Australia in 1967 and was
naturalised in late 1987. The husband entered Australia in 1976 but
remains a Portuguese citizen. At all material times the parties
have been ordinarily resident in Australia.

There are two children of the marriage, both born in Australia. The
elder, H, was born on 14 February 1978 and she is an Australian
citizen albeit of dual nationality. The other child, M, was born on
17 September 1985.

The parties and H traveled to Portugal for comparatively short
visits in 1982 and 1984. Then in or about July 1986 the parties and
the two children went to Portugal for a holiday visit. On or about
18 October 1986 returned to Australia leaving H in the care of the
husband’s parents in Portugal. H has remained in Portugal ever
since with the husband’s parents. The wife alleges that the child
was left in Portugal against her wishes. The wife has been unable
to have contact with H since that time and her efforts to persuade
the husband to arrange for the child to be returned to this country
have been unsuccessful.

The marriage finally came to an end on 4 May 1987 after an earlier
period of separation from late November 1986 to late March 1987 and
an attempted reconciliation. The parties lived separately and apart
under the one roof until the husband left the home in December
1987.

Shortly after the marriage came to an end, namely on 2 June 1987,
the wife filed an application for the custody of and maintenance
for H. The husband has never sought custody of that child at any
time. On 8 September 1987 an order was made by consent that the
wife have custody of M and requiring the husband to pay maintenance
for that child.

On 14 March 1988 the wife filed an application for, inter alia, an
order that the husband pay for H’s return to Australia. It will be
appreciated that by this time a considerable period had already
elapsed from the filing of the wife’s application for custody of
the child and that delay in the circumstances of this matter,
whatever the cause, is a matter of concern. It was not until 11
April 1988 that it was ordered that the hearing of the wife’s
applications be expedited.

The husband made a brief visit to Portugal in April and May 1988
because of the illness of his father and on 1 July 1988 the husband
was restrained from leaving Australia.

H is bilingual, has dual nationality and, since October 1986, has
lived with her paternal grandparents and attended school in
Portugal.

There are no proceedings in relation to the custody of H in
Portugal.

It appears from the transcript of the submissions made to the trial
judge that the wife has attempted to invoke the Family Law (Child
Abduction Convention) Regulations. Although the position is not
clear it seems that she has not been able to persuade the
Commonwealth Central Authority to take the necessary steps on her
behalf. The wife’s position is that the child has been wrongfully
retained in Portugal since October 1986 and accordingly it may be
that Article 35 of the Convention presents a difficulty to the
wife. In any even because each of the parties is a guardian, and
they have joint custody, of the child it is not difficult to
appreciate why the authority may be hesitant to accept that the
child has been wrongfully retained.

When the wife’s consolidated applications for custody and for the
husband to pay for the child’s return came on before the trial
judge on 16 June, 19M, his Honour ruled that initially he would
decide the issue whether he should exercise the court’s undoubted
jurisdiction. In that regard his Honour also held that it would not
be appropriate “to embark on a full inquiry as to the merits for
the purpose of determining this preliminary question, but will
limit my findings of fact to what appear on a reading of the
affidavits to be common ground”.

It is apparent from the transcript of the proceedings that the
trial judge would not permit counsel for the wife to call oral
evidence and in particular to cross-examine the husband in relation
to the preliminary inquiry on which his Honour embarked.

In the course of his judgment his Honour said:

“In custodial proceedings the welfare of the child must be the
paramount consideration, and this applies with equal force to the
preliminary discretionary question which has been raised. The court
has jurisdiction pursuant to one or both of the bases referred to
above. The question is whether, in the interests of the child, that
jurisdiction ought to be exercised.

“There is ample authority for the proposition that only in
exceptional circumstances will the court make a custody order
relating to a child not within the jurisdiction, particularly if
the child is in a country where the order of an Australian court
would not be enforced. That is, prima facie, orders ought not to
be made which are incapable of enforcement: see In the Marriage of
Ding (1976) 1 Fam L.R. 11,231; [1976] FLC 90-023. See also,
Glasson and Scott [1973] 1 NSWLR 689 and the decisions reviewed
therein. In that case, it was held that although the Supreme Court
of New South Wales had jurisdiction to issue a writ of habeas
corpus in respect of a child in Queensland, having regard to all th
circumstances, the writ should not issue. In Ding’s case, Fogarty
J held that there were exceptional circumstances justifying
exercise of the court’s jurisdiction, namely that the child in
question was an Australian citizen with `real’ connections with
Australia, and the child’s sister and mother were both living in
Australia at the time of the proceedings. It might be thought there
are special circumstances here because both parties are present and
reside in Australia. However, the distinguishing feature in Ding’s
case appears to me to be the time factor. In that case, the wife
departed from Sarawak, Malaysia, in September 1975, leaving the
husband and the child in question in that country. The proceedings
came before Fogarty J ex parte in February the following year, that
is, four or five months later. We are not told in the report In the
Marriage of Ding how old the child in question was at the time of
the proceedings, but it is an inference from the facts as reported,
that he was not more than six years of age.

“The principal problem in the present proceedings is the dearth of
evidence in the affidavits from which findings could properly be
made under s 64(l)(b) or in terms of any of the criteria contained
in s 64(l)(bb). In relation to s 64(l)(b) the wife is
understandably not able to put forward any evidence of the child’s
present wishes. This is a most material consideration having
regard to the age of the child concerned.

“The only evidence of that came from the husband, who has had, of
course, recent contact with his daughter. It appears to me I cannot
place much store by the husband’s evidence, unsupported by any
objective or independent evidence. As a matter of practicality,
reliable evidence of the child’s wishes can only be obtained in
Portugal.

“As to the criteria contained in s 64(1)(bb), it is apparent that
the evidence would not support any findings, save in relation to s
64(l)(bb)(iv), namely, findings as to the attitude of the child and
the responsibilities and duties of parenthood demonstrated by each
parent. One most important consideration, which the court must take
into account, is the relationship between the child and each of the
parties, and `other persons’, in this case the husband’s parents.
Another crucial consideration is the effect of any change in the
existing arrangements for the care of the child. Further, the court
must make findings of fact concerning the child in her current
setting, and about the husband’s parents, and the role that they
have occupied for almost two years: see In the Marriage of Sanders
(1976) 1 Fam LR 11,433; [1976] FLC 90-078. The wife is unable for
geographical and financial reasons to assemble material relevant to
these questions, and the husband declines to do so.

“It appears to me that the child’s interests would be seriously
jeopardised where this court to embark upon any exercise of its
jurisdiction in the absence of material of this kind. Any
determination of the custody question, on the material before me,
would of necessity be an uninformed judgment arrived at without
reference to the very matters which the Act renders mandatory
considerations. These are matters which can best be ventilated in a
Portuguese court. In the absence of evidence to the contrary, I am
entitled to assume that the Portuguese legal principles relevant to
custody are identical with our own principles and, in particular,
that the welfare of the child will be regarded in a Portuguese
court as the paramount consideration: see In the Marriage of Toric
(1981) 7 Fam LR 370; [1981] FLC 91-406. Hence, I can assume that
the welfare of the child will not be adversely affected by the
operation of unfavourable legal principles if the wife is forced to
litigate in a Portuguese court rather than in this country.

“Another matter to which I must have regard is the desirability of
one court to determine the custody issue: see In the Marriage of
Mittelman (1984) 9 Fam LR 724; [1984] FLC, 91-578. It appears to me
that were I to entertain the application and make an order in the
wife’s favour, she would then have to face another hurdle, namely
the enforcement of that order in Portugal. It is clear for the
reasons appearing above that the orders of this court are not
entitled to automatic recognition in Portugal. It can be
confidently assumed that the husband’s parents, who are not parties
to this litigation, would set in train proceedings in Portugal to
frustrate the repatriation to Australia of the child concerned,
even if an order were made in this court.

“Further, the issue of the husband’s parents’ fitness to continue
in their present custodial role, can best be tested in Portugal:
compare Mittleman’s case. The other considerations which should be
borne in mind are set out in an oft quoted dictum of Buckley LJ in
Re L (Minors) 1981 2 FLR (UK) 416 at 425, and I will deal with such
of these as are relevant to the present case.

“I have already referred to the desirability of one Court
determining the issue of custody. The other relevant considerations
are:

“(1) There can be no question in the present case that a
discretionary refusal on my part to entertain the application can
result in any relevant alienation from ‘background, home, schools,
friends, relations, and ultimately from the child’s country, its
society and culture’. We are dealing here with an entrenched
status quo of two years’ duration, and it is a moot point now what
country is H’s country. She is, of course, of dual nationality, is
bilingual, and has for the past two years been educated in
Portugal.

“(2) The risk to the child of continued separation from her mother.
This is unfortunately, a situation which only the wife can remedy.
I accept that there are financial constraints operating upon the
wife, and I take this factor into consideration.

“(3) The question of the applicable law, particularly of the risk
to the child of being subject to a regime of law under which the
protection of her interests may-be open to question, This is not a
relevant issue in the present case, for reasons appearing above.”

The trial judge then discussed the decision of Waddell J in Kelly v
Panayioutou [1980] 1 NSWLR 15 and distinguished the decision
because of the difference in-ages of the children and said that the
ascertainment of H’s wishes “is a crucial fact finding exercise
which this Court cannot confidently embark upon for reasons already
considered”.

It is obvious that his Honour was greatly concerned about the
absence of any reliable evidence as to any “wishes expressed by the
child in relation to custody” of the child. In view of the lapse of
time to which the trial judge made reference it seems to us that H
would not be likely to be in a position to express any reliable
independent wishes in relation to her custody or at least wishes to
which the court would give great weight. However, it would have
been open to his Honour, in view of the fact that the husband was
personally amenable to the jurisdiction of the court, and in
addition had property in this country, to order the husband to take
steps to have the child returned to Australia. Thereafter both
husband and wife could have had access to the child with the final
determination of the custody application taking place after H had
had a reasonable opportunity to find her feet in this country and
re-establish her relationship with her parents.

The other matters prescribed under s 64(l)(bb) of the Act should
not cause any great difficulty in the hearing of the proceedings in
this court. The paternal grandparents would have the right to seek
leave to intervene in the proceeding and it is unlikely that such
an application on their behalf would be refused. In our view it is
more realistic to expect the husband’s parents to take part in the
custody proceedings in this country than to expect the wife to
initiate and prosecute custody proceedings in Portugal.

Bearing in mind that H is an Australian child and that both her
parents and her brother live in this country we do not agree with
his Honour’s view that the statutory matters to which we .have just
referred can “best be ventilated in a Portuguese court”.

We do not differ from his Honour’s conclusion that “unfavourable
legal principles” would not be applied in a Portuguese court.
However, it seems to us to be unrealistic to talk of the wife
litigating in such a court after the trial judge himself referred
to the “geographical and financial reasons” which prevented the
wife from even putting material relating to the child’s Portuguese
lifestyle before this court.

In so far as the trial judge’s concern about the desirability of
one court determining the custody issue, we acknowledge that there
is no guarantee that an Australian custody order in favour of the
wife would be automatically enforced in Portugal. However that
difficulty may not be as formidable as the trial judge considered.
If, as we have previously mentioned, the child was returned to
Australia prior to the final hearing it is obvious that difficulty
would removed. We repeat that the husband is resident in Australia,
he carries on business here and has property, apparently of not
insignificant value in this country. In those circumstances it
seems to us that it would not be difficult to impose personal and
financial constraints on the husband which would encourage him to
comply with an order to take whatever steps are necessary on his
part to have his parents return the child to this country. We do
not think it proper to assume that the husband’s parents would not
cooperate if the husband were ordered to arrange for H’s return to
Australia.

Even if the child is not returned to Australia pending the final
determination of the custody proceedings, it seems to us that the
wife would be entitled to have recourse to the Family Law (Child
Abduction Convention) Regulations if a sole guardianship and
custody order is made in her favour. The wife would be able to
demand the return of H and on-compliance on the part of the
grandparents would constititute wrongful retention.

Although we agree that the fitness of the husband’s parents to
continue their present custodial role can more easily be tested in
Portugal rather than in this country there is no barrier which
would necessarily prevent their evidence being tested in this court
and we have already made reference to the husband’s parents seeking
to intervene in the custody proceedings.

In our view his Honour is plainly wrong in saying that there “can
be no question in the present case that a discretionary refusal on
my part to entertain the application can result in any relevant
alienation from background, home, school, friends, relations, and
ultimately from the child’s country, its society and culture”. In
our view his Honour’s dismissal of the wife’s application for
custody is in all probability likely to have just that effect.
There seems to be an implication in the judgment that what is
referred to as an “entrenched status quo of two years duration” has
had the result of H no longer being an Australian and in some way
alienated from both her parents and her brother. We do not think
that is the correct conclusion to be drawn from the facts so far as
they are presently known. Also that approach seems to overlook the
importance of the first more than eight years of H’s life.

His Honour’s decision could well mean a permanent separation of the
child from her mother and her brother. Although his Honour refers
to that situation being one which “only the wife can remedy” it
seems to us that the wife has taken the obvious remedial step,
namely applying for custody in an appropriate court of competent
jurisdiction. If there are to be additional financial obligations
imposed on anyone in this matter we do not consider that the wife
is the appropriate person to suffer.

When his Honour delivered judgment in this matter, namely on the 17
June 1988 neither the decision of the High Court in Oceanic Sun
Line Special Shipping Co Inc v Ray (1988) 62 ALJR 389 nor the
decision of the Full Court of this Court In the Marriage of Taylor
(1988) 12 Fam LR 423; [1988] FLC 91-943 were published.

In the course of his judgment in the former case Brennan J said:

“The duty of an Australian court to exercise its jurisdiction is
essential to the authority of Australian municipal law to govern
the transactions to that which that law applies. If the court has a
discretion to decline to exercise its jurisdiction in favour of the
jurisdiction of a foreign court administering another system of law
whenever the foreign court is though to be `the appropriate forum,
the rights and obligations created by Australian municipal law
become provisional, dependent upon a discretionary judgment. A
plaintiff seeking to enforce a right vested in him by Australian
law would have to approach the court as a suppliant, seeking the
favourable exercise of a discretion to enforce that right. That is
not the character in which a plaintiff in this country invokes the
jurisdiction of a court to enforce a legal right in contract or in
tort.”

And at a later stage his Honour said:

“The plaintiff seeks to enforce his cause of action in a
jurisdiction which he has regularly invoked. The invocation of that
jurisdiction was not, in the relevant sense oppressive, vexatious
or in abuse of process. The plaintiff is therefore entitled to have
his case heard and determined by the Supreme Court of New South
Wales”.

Although that decision of the High Court does not relate to the
exercise of jurisdiction in custody proceedings in which the
welfare of the child is the paramount consideration, nevertheless
it establishes the High Court’s view in relation to an application
to stay other types of proceedings.

Of more immediate relevance is the decision of the Full Court of
this court in Taylor, supra.

The court held:

“(a) There is only one basic principle as to the exercise of
jurisdiction in respect of children and that is the one laid down
in s 60D of the Family Law Act, namely that the welfare of the
child shall be the paramount consideration. It is undesirable to
formulate a rule or principle that jurisdiction should not be
exercised in respect of children who are not within the
jurisdiction unless there are exceptional circumstances. It may be
that in the majority of such cases the court will not exercise
jurisdiction, but this will arise out of two basic circumstances:

(i)where there is no likelihood of enforcing any order which the
court may make; and

(ii) the country in which the child resides is the better forum.
This is especially true if it is the country of the child’s long
established residence.

“(b) In the present case, there was no suggestion that the United
Kingdom courts would refuse to enforce the Australian order and, in
any event, the court had personal jurisdiction over both parties
and was in a position to ensure compliance with any order it made
that the children be brought to this country. Furthermore, it could
not be argued that the United Kingdom was the long established
residence of the children. As between Australia and the United
Kingdom, Australia was clearly the most appropriate forum.

“. . . ”

“(f) In view of the behaviour of the husband, the trial judge was
justified in ordering the bringing of the children within the
jurisdiction without first determining the question of custody.”

There is no evidence that the Portuguese courts would refuse to
enforce an order of this court although for that matter there is no
evidence that those courts would necessarily enforce a custody
order made in this country. However, as was the case in Taylor,
supra, this court has personal jurisdiction over both parties and
for that reason it cannot be said that there is no likelihood of a
custody order of this court being enforced. Furthermore we
reiterate that the wife should be able to obtain assistance under
the Family Law (Child Abduction Convention) Regulations.

We conclude our reference to Taylor, supra, by noting that in the
present proceedings it is our view that a trial judge would be
justified in ordering the child be brought within the jurisdiction
of this court without first determining the question of custody.

It is clear that the order appealed from is a discretionary order
and that the traditional principles to be applied in respect of
appeals against discretionary orders apply to this appeal. The
principles to be applied on such an appeal are not really the
subject of doubt or uncertainty. There are a number of
authoritative cases which set out those principles in detaii. It is
sufficient for present purposes to merely give the references to
some of those cases, namely: House v R (1936) 55 CLR 499 at 505;
Australian Coal and Shale Employees’ Federation v The Commonwealth
(1953) 94 CLR 621 at 627 and Norbis v Norbis (1986) 10 Fam LR 819;
[1986] FLC 91-712.

However, we are satisfied that the trial judge’s decision is
clearly wrong in that it is “so unreasonable or plainly unjust”
that the only conclusion open to this court is that there has been
a failure by the trial judge to properly exercise his discretion.

Although it is not necessary for us to do so we mention one other
ground of appeal on which the wife relied, namely his Honour’s
refusal to allow the wife to give evidence or to cross-examine the
husband. Although an investigation of the question of whether the
court should exercise its jurisdiction in a particular matter would
normally be conducted in a summary way we do not consider that, in
the circumstances that applied here, the wife should have been
precluded from giving oral evidence and cross-examining the
husband.

We would allow the appeal.

We think this is an appropriate case in which there should be a
certificate to both parties under the Federal Proceedings (Costs)
Act 1981 (Cth) in respect of the costs of the appeal. ”

We have already mentioned our concern about the delay that occurred
prior to the hearing below. Also the appeal did not come on for
hearing until more than nine months after the appeal was
instituted. Those delays are likely to result in prejudice to the
wife and are not conducive to the welfare of H. We trust that the
hearing of the wife’s applications will be commenced in the near
future.

Orders

The orders of the court are as follows:

(1) That the appeal be allowed.

(2) That the order contained in para (1) of the order dated 17 June
1988 be set aside.

(3) That the application of the wife filed on 2 June 1987 for the
custody of the child of the marriage, H, be listed for hearing with
priority before a single judge the Sydney Registry of this court.

(4) That the court grants to the appellant wife a costs certificate
in respect of the appeal pursuant to s 9 of the Federal Proceedings
(Costs) Act 1981.

(5) That the court grants to the respondent husband a costs
certificate in respect of the appeal pursuant to s 6 of the Federal
Proceedings (Costs) Act 1981.

Solicitors for the appellant: McDonell Milne Fowler

Solicitors for the respondent: M C Antunes.

GARY ROBERTS
BARRISTER .