SUMMARY OF CASES
DECIDED UNDER
THE CONVENTION ON THE CIVIL ASPECTS
OF
INTERNATIONAL CHILD ABDUCTION,
DONE AT THE HAGUE ON 25 OCT 1980
IN AUSTRALIA
This listing was graciously provided by the
Hon. Justice Peter E. Nygh
of the Family Court of Sydney, Australia.
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In the Marriage of Lambert and Lambert, at Melbourne, 3 April
1987, unreported
[Full text is on Hilton House BBS: LAMBERT.AUS]
“grave risk of … intolerable situation”, Article 13(b).
Factual.
The child (aged 3) pursuant to an interim order was in the custody
of the wife. The husband wrongfully removed the child to
Australia. The husband sought to rely on the Article 13(b)
exception alleging that the child was exposed to an atmosphere of
violence and drunkedness in the care of the wife. Held, The
Exceptions to the convention are likely to be few and far between
and this case clearly is not one that falls within it. The court
was not satisfied that it was a grave risk to the child if he was
returned to the wife. Even if there was such a risk, given the
circumstances of the removal of this child the Court would have
exercised its discretion adversely to the abductor.
In the Marriage of Hicks and Hicks, Family Court of Australia at
Sydney , 10 April 1987, unreported
[Full text is on Hilton House BBS as HICKS.AUS]
“right of custody”, Article 3. Factual
After the parties separated the child (aged 3 1/2) remained
resident in the former matrimonial home with the husband and his
mother in the United Kingdom. The wife alleged that she took part
in the care and control of the child on a daily basis. The child
was removed from the U.K. and taken to Australia by the wife. A
custody application by the husband was still pending in the U.K.
court. Held, 1. Under the law of England at the relevant time the
husband was jointly with the wife entitled to exercise the rights
of custody in respect of the child of the marriage. 2. Whatever
the role of the wife during the day in the child’s care, there is
no doubt that at the relevant time the husband was actually
exercising rights of custody in respect of the child. Prima facie
case established for order for return under the Convention.
In the Marriage of Barraclough and Barraclough (1987) 11 Fam LR
773
[Full text is on Hilton House BBS as BARACLH.AUS]
“right of custody”, Articles 3, 5. Issue of Law.
Four children taken by wife from England to Australia in July
1986, with consent of husband who believed that they were going
only for the duration of the children’s summer vacation. In
February 1987 the wife told the husband she intended to live
permanently in Australia. On 24 April 1987 the children became
wards of the U.K. Court on the application of the husband. On 11
August 1987 the husband applied to the Australian Court for an
order under the Family Law (Child Abduction Convention)
Regulations that the children be returned. Held, The rights of the
husband at the present hearing did not include a right to have the
children back with him in England at that time. The right to
determine the current residency of the children vested in the U.K.
Court as the children were wards of that Court.
In the Marriage of Turner and Turner, Family Court of Australia,
at Brisbane, 27 June 1988, unreported
[Full text is on Hilton House BBS as TURNER.AUS]
Child objects to return .., Article 13. Factual.
Child (aged 13) came to Australia to visit her father for a
holiday on 7 December 1987. On 12 December wife informed by
husband that child wished to stay in Australia. Wife initially
consented then revoked consent. In January 1988 the wife sought
the child’s return. Application for return made by Central
Authority in May 1988. Held, 1. Issue of wife’s “acquiescence” not
necessary to decide. 2. Child found to hold a genuine and
consistent desire to remain in Australia with her father and was
able to articulate a variety of sound reasons that influenced her
in that desire, including the constraints put on her by her
mother’s adherence to a religious sect. The Court held that the
child objected to return and that she had attained an age and
degree of maturity at which was appropriate to take account of her
views. Application dismissed.
Between Ottens and Ottens, Family Court of Australia, at
Melbourne, 21 December 1988, unreported
[Full text is on Hilton House BBS as OTTENS.AUS]
Acquiescence; grave risk of harm, Articles 13(a), (b). Factual
From Canada 2 children (aged 5 and 8) taken by the wife to Hawaii
for holiday in mid-1988. Whilst in Hawaii the wife formed the
intention of not returning to Canada and traveled with the
children to Australia without consulting the husband as to the
desirability of such a move. Husband sent clothing and toys to
children in Australia and there was some delay before he applied
for the return of the children under the Hague Convention. Wife
alleged bullying and abuse by husband during marriage seeking to
establish the article 13(b) exception. Held, 1. The husband was
found not to have acquiesced or consented to the retention of the
children in Australia. 2. No risk to children in their being
returned to Canada. Order for return
Gsponer v Johnstone, (1988) 12 Fam LR 755
[Full text is on Hilton House BBS as GSPONER.AUS]
“grave risk … intolerable situation”, Article 13(b) issue of
law.
Children wrongfully removed from Switzerland to Australia. The
wife alleged that during the marriage she and the children had
been subjected to violence by the husband. The trial Judge ordered
the return of the child. On appeal the wife relied on a
disjunctive interpretation of reg l6(3)(b) (the implementing
provision of Article l3(b)). Held, 1. While the three categories
of harm are to be read separately, there must be a “grave risk” of
the occurrence of one or more of such events. The grave risk of
any physical or psychological harm is not enough; the physical or
psychological harm must be of a substantial or weighty kind. 2.
Reg. 16(3)(b) has a narrow interpretation. It is confined to the
“grave risk” of harm to the child arising from his or her return
to a country to the Contracting State. Appeal dismissed.
In the Marriage of Gollogly and Owen, (1989) 13 Fam LR 622
[Full text is on Hilton House BBS as OWEN.AUS]
Removal not in breach of an existing order, Whether retention
became wrongful when custody order varied, Article 3. Issue of
law.
A consent agreement was filed by the parties in 1986 giving the
wife custody of the children of the marriage. Subsequently, the
wife left Alaska then traveled to Australia with children of the
marriage. The Superior Court of Alaska in 1987 made a formal order
that the wife had custody. In 1989 the husband obtained an order
for custody for 3 youngest children. The order was registered in
Australia and Hague Convention proceedings were initiated for the
return of the 2 youngest children (those then under aged 16).
Held, the retention of the children by the wife was not wrongful
pursuant to Article 3. The relevant children were not habitually
resident in Alaska immediately prior to the making of the order by
the Alaskan Court in 1989. Application dismissed.
Director General of Family and Community Services v. Davis (1990)
14 Fam LR 381
“grave risk … intolerable situation”, Article 13(b) Issue of
law.
Children (C aged 8 and F aged 4) wrongfully removed from U.K. to
Australia, by mother. Mother unwilling to return with children to
State of habitual residence. Child F removed by trial Judge from
the order to return. On appeal. Held, 1. there was no evidence
before the trial Judge from which her Honour could infer that a
grave risk of psychological harm, of the requisite (severe)
degree, would occur if F were returned to the U.K.. 2. The wife’s
inability to accompany the child to the U.K. was obviously a
serious consideration but which, if it existed, was created by the
unilateral conduct of the wife and she should not rely on the fact
that she had created the very situation which would prevent
compliance with the Convention.
In the Marriage of Brandon and Brandon (1390) 14 Fam LR 706
Right of custody, habitual residence, Article 3. Issue of Law.
In 1988 a child was taken to England by the husband with the
consent of the wife in breach of an Australian temporary custody
order in favour of the Director General of the Department of
Family Services Queensland. Husband informed D-G of child’s
whereabouts and circumstances. The D-G took no action to have
Child returned to Australia. In 1989 the wife reunited with the
husband and the child in England. In February 1990 the temporary
custody order in favour of the D-G ceased to have effect. In
March 1990, without the knowledge or consent of the husband, the
wife brought the child from England to Australia. The husband
sought return of the child to England pursuant to the Convention.
Held, 1. When the temporary custody order in favour of the child
terminated, the husband and wife assumed by force of English law
equal rights and authority to legal custody. The husband was
actually jointly exercising rights of custody to the child at the
time he was removed from England by the wife. 2. The child was
habitually resident in England at the time of his removal to
Australia by the wife. 3. While the child’s removal to England was
in breach of the temporary custody order in favour of the D-G and
therefore wrongful, this taint of wrongfulness faded away
completely due to the effluxion of time, the acquiescence of the
D-G, and the good progress the child had made in his new
environment in a lengthy period. 4. The right court to determine
the custody issue was the English court.
In the Marriage of Thompson and Thompson (1990) 14 Fam LR 542
Power to order production of records and information from
government departments to assist in location of children Issue of
Law.
The wife had wrongfully removed the children to Australia from
America and her exact whereabouts could not be ascertained. With a
view to determine the whereabouts of the wife and children, the
Central Authority brought a number of interlocutory applications
against the Commissioner of Taxation, the General Manager of the
Health Insurance Commission and the Secretary of the Department of
Social Security. The applications sought the production of records
of claims, applications, returns and assessments concerning the
wife and children. Each of the respondents operated under
Commonwealth legislation known generally as “secrecy provisions”.
Held, 1. The Court did not have the power to make orders in the
broad form sought by the Central Authority. The Court did have
power to make orders that the respondents provide information from
their records as to the whereabouts of the wife and children. 2.
Seeking an order for the issue of a warrant ( a prerequisite under
s64A(4) for order 1. above) solely under reg 15 would be
ineffective to override the “secrecy provisions”. The order had to
be issued under both reg. 15(2) and sec 64(9).
In the Marriage of Hooft van Huysduynen and van Rijswijk (No.l),
(1990) FLC 92-119
Meaning of “convention country”. Issue of law.
The wife had brought the children to Australia from the
Netherlands without the consent of the husband. An order had been
made in the Netherlands Court awarding him custody. The husband
sought to rely in the Child Abduction Regulations implementing the
Child Abduction Convention in Australia for an order that the
children be returned. At the time the Netherlands whilst a
signatory to the Convention had not ratified, accepted or approved
it” Held, 1. the Netherlands was not a “convention country” as
defined by the Regulations. 2. Article 18 of the Vienna Convention
on the Law of Treaties did not assist the husband’s claim that the
Netherlands should be deemed a “convention country”
In the marriage of Artso and Artso, Family Court of Australia at
Dandenong, 20 March 1991
Wrongful retention/ habitual residence, Article 3. Issue of Law.
The husband and wife agreed to travel to Australia from England
with their two children (aged 8 and 12) to stay for a period
determined particularly on the happiness of the children, up to 12
months. The stay was ultimately for the purpose of investigating
the possibility of immigrating to Australia. The parties marriage
broke up soon after the wife and children arrived in Australia
after the wife expressed her desire to return to England. The
husband refused the wife permission to take the children back to
England. The wife returned to England and issued proceedings in
the High Court of Justice, Family Division in England seeking
custody, care and control of the children with relief requiring
their return to England. Proceedings were initiated under the
Hague Convention by the Central Authority for the return of the
children. It was argued that there had been wrongful retention of
the children by the husband in breach of her rights of custody
under English law. Held, 1. the unilateral decision by one parent
to form a settled intention to reside in another country and
thereby potentially acquire a different habitual residence cannot
bind the children. Such a decision would require the acquiescence
of both their joint guardians and custodians (In re J (A minor)
[1990] 3 W.L.R 492 applied). The children’s habitual residence
therefore remained England. 2. In the circumstances of the
agreement between the husband and wife the refusal of the wife’s
right to take the children back with her to their place of
habitual residence was a wrongful retention of the children by the
husband.
Graziano and Daniels (1991) 14 Fam LR 697
Whether children “settled” in new environment, Article 12. Issue
of law.
Four children (aged 3, 4, 6, 8) were wrongfully retained in
Australia by the mother after a 7 week holiday in Tasmania.
Shortly after arriving in Tasmania in April 1989 the mother
enrolled the 2 older children in local schools and began building
a house. More than one year after the wrongful retention the
husband completed an application for assistance under the Hague
Convention on 21 May 1990. Proceedings were initiated in the
Family Court in Launceston on 2 November 1990. A Family Report was
prepared by a clinical psychologist to assist the Court in
assessing the degree to which the children had established
themselves in Tasmania. The trial Judge came to the conclusion in
the case of each child that he or she was not emotionally and
physically integrated to be “settled” in Tasmania within the
meaning of the Convention, and ordered the return of the children.
On the mother’s appeal. Held, 1. The test of “settling” must be
more exacting than that the child is happy, secure and adjusted to
his or her surrounding circumstances. 2. The word “settled” has
two constituent elements. First, a physical element of being
established in the community and an environment. Second, an
emotional constituent denoting security and stability 3. The
“settlement” must relate to a new environment and must encompass
“place, home, school, people, friends…but not per se the
relationship with mother which has always existed.” 4.The fact
that a child has lived in a country for more than one year does
not by itself raise a presumption that the child has become
settled in its new environment. Appeal dismissed.
In the Marriage of Resina and Resina, 22 May 1991, Family Court of
Australia (Full Court) at Perth, unreported.
meaning of “right of custody”, Articles 3, 5. Issue of Law
In April 1990 an order was made which restrained the parties from
removing 2 children from Australia (habitually resident in Western
Australia). In January 1991 the children were removed from
Australia to France by their maternal grandparents. In breach of
orders that she surrender her passport to Australian authorities
the wife left Australia on 22 February 1992 and traveled to
France. The husband the biological father of 1 child only applied
for a declaration that the removal of both children was wrongful.
Under Western Australian law the husband had no rights of custody
or guardianship in respect of the child to which he had no
paternity except the right to apply to competent court for such an
order. On appeal the Full Court held that the injunctive order of
April 1990 constituted a “right-of custody”, following C v C
(1989) 1 WLR 654
Between Director-General of the Department of Family and Community
Services and Nogel and Smithers, Family Court of Australia, at
Brisbane 21 November 1991, unreported.
“grave risk of …. in tolerable situation”, Article 13(b).
Factual
Husband and wife had custody of 2 children (aged 9 and 6 1/2)
pursuant to joint parenting order. On 5 May 1991 the wife
wrongfully removed the children from the United States to
Australia, and attempted to hide them in Australia under false
names. Psychological evidence and evidence of the children’s
school teachers was before the court in relation to the children’s
feelings relating to each parent and their emotional and
intellectual developmental age. The Judge concluded that the
evidence indicated extensive manipulation and coaching of the
children by their mother holding that she had not discharged the
onus of proof on her required by the Article 13(b) exception and
ordered the return of the children.
In the Marriage of Layfield and Layfield, at Brisbane, 6 December
1991, unreported.
Meaning of “Child objects to return”, Article 13. Factual.
On 31 May 1991 child (aged 11) wrongfully removed from U.K. by
mother to Australia. The child wished to stay with her mother.
Held, 1. Child has reached an age and has that degree of maturity
at which it is appropriate to take into account her views. The
child’s wishes are not that she wishes to remain in Australia per
se, but that she wishes to remain with her mother. In this case
child’s views not sufficient to refuse to order return of the
child.
In the Marriage of Gazi and Gazi, Family Court of Australia, at
Sydney, [1993] FLC 92-341
[Full text is on Hilton House BBS as GAZI.AUS]
Summary nature of proceedings. Issue of Law
Two children taken from France by father to Australia. The father
alleged that the wife consented to or acquiesced in the removal
from France. This the wife denied. At the hearing the trial Judge
read all the relevant material and invited the parties to address.
The trial Judge found that the removal of the children from France
by the husband was wrongful and without the consent of the wife,
ordered the return of the children. On appeal, the husband
submitted that he was denied natural justice in that he was not
given an opportunity to cross-examine the wife on a number of
matters including an allegation that she was ill an undergoing
psychiatric treatment. Held, there was no denial of natural
justice, the primary purpose of the Convention was to provide a
summary procedure for the resolution of the proceedings. Whilst it
may be appropriate to allow cross-examination of deponents of
affidavits, such cases would be rare. The majority of proceedings
should be dealt with in a summary manner and cross-examination of
deponents of affidavits would not be appropriate. This case fell
into the latter category and the trial Judge properly adopted a
summary procedure.
In the Marriage of Brown and Brown, Family Court of Australia, at
Sydney, 18 December 1992
[Full text is on Hilton House BBS as BROWN.AUS]
Grave risk of harm … intolerable situation, Article 13(b).
Factual.
Ten month old child wrongfully removed from Austria to Australia
by husband. Photographs, taken by mother, of child with naked men
were before the Court. The husband argued that the photographs
demonstrate that to allow the wife to receive the child for return
to Austria and to have her awaiting and during proceedings in her
care poses a grave risk of the child being exposed to harm of the
kind demonstrated in the photographs. Held, 1. Even if similar
photographic sessions would create a grave risk of exposure to
substantial harm, the Judge was not satisfied that there was a
grave risk that such events or anything similar to them would be
repeated between now and the Austrian authority’s determination of
the matter. To ensure prompt attention to this case by the
Austrian authorities a copy of the Judge’s decision, orders and
exhibited photographs were transmitted to them via the Australian
Central Authority.
Department of Health and Community Services and Easton, Family
Court of Australia at Melbourne, 23 December i992, unreported.
[Full text is on Hilton House BBS as EASTON.AUS]
Meaning of “Child object to return”, Article 13. Factual.
Child (aged 11) wrongfully retained in Australia by mother. Child
expressed a wish to remain in Australia with his mother and his
step-father. Held, Evidence does not establish that child objects
to being returned and that he has obtained an age and degree of
maturity which it is appropriate to take account of his views.
Even if evidence did establish the exception it would be
inappropriate to exercise the Court’s discretion to refuse to
return the child as there has been a clear and flagrant breach of
an order of a foreign court and an arrangement between the
parties.