ACQUAAH-AKUFFO & ABIOYE

[2016] FamCAFC 194

FAMILY COURT OF AUSTRALIA

ACQUAAH-AKUFFO & ABIOYE [2016] FamCAFC 194

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals from orders that he return the child to a non-Hague Convention country –Where the trial judge was required to determine in which forum the parenting dispute should be heard – Where the focus of the hearing turned to a consideration of interim parenting orders – Where the trial judge did not appoint an Independent Children’s Lawyer – Where this decision was open to his Honour in the circumstances – Where the father asserted that the trial judge failed to give sufficient weight to the risk that the child may not be returned to Australia if such an order was made – Where the trial judge found that this risk was outweighed by the benefit of the child returning to the care of his primary caregiver – Appeal dismissed.

Family Law Act 1975 (Cth) ss 60CC, 117(2A)
Family Law Rules 2004 (Cth) r 10.12

Bondelmonte & Bondelmonte (2016) FLC 93-698

CDJ v VAJ (1998) 197 CLR 172
Goode and Goode (2006) FLC 93-286

Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Kwon and Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559)
Maldera & Orbell (2014) FLC 93-602

Pascarl & Oxley (2013) FLC 93-536

ZP v PS (1994) 181 CLR 639

APPELLANT: Mr Acquaah-Akuffo

RESPONDENT: Ms Abioye

FILE NUMBER: PAC 1193 of 2016

APPEAL NUMBER: EA 94 of 2016

DATE DELIVERED: 27 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE: 27 September 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 June 2016

LOWER COURT MNC: [2016] FamCA 507

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kenny

SOLICITOR FOR THE APPELLANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Ms Barnett

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Sydney Central Family Law

Orders

1. The Application in an Appeal filed on 6 September 2016 is dismissed.

2. The Appeal against the orders of Gill J made on 22 June 2016 is dismissed.

3. The applicant to pay the respondent’s costs of and incidental to the appeal in the sum of $3,910, such costs to be paid within 9 months of 27 September 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Acquaah-Akuffo & Abioye has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 94 of 2016
File Number:  PAC 1193 of 2016

Mr Acquaah-Akuffo

Appellant

and

Ms Abioye

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the judgment of the Court.

2. Mr Acquaah-Akuffo (“the father”) appeals against orders made by Gill J on 22 June 2016 concerning parenting arrangements for the child B.  Ms Abioye (“the mother”) resists the appeal.

3. The child, who was born in 2006 in Australia, has since February 2007 lived in Ghana with his mother.  The father lives in Australia, although he has travelled to Ghana to spend time with the child.

4. On 17 August 2015 the father removed the child from Ghana and brought him to Australia for a holiday.  He has retained him here, refusing the mother’s requests that he return the child to Ghana.

5. His Honour relevantly ordered, pending further order that:

   1. The mother has sole parental responsibility for [the child].

   2. The child shall live with the mother.

   3. Within seven days’ [sic] of the making of these Orders the father shall do all acts and things necessary to cause the child to be delivered to the mother or her agent at […] International Airport […] Ghana.

   …

6. His Honour’s orders made the father responsible for the costs of and arrangements for the child’s travel.

7. On 29 June 2016 the trial judge stayed the operation of those orders pending the hearing of the father’s appeal against the orders.

8. The child remains in Australia.  The mother is in Ghana and has not seen the child since his removal.

9. The father sought to adduce further evidence on the appeal to which we will return.

10. We understand the uncontentious facts to be as follows:

    ·The parties are both Ghanaian nationals who married in 2005 and divorced on 28 January 2011.

    ·On 28 January 2011 the mother obtained orders from a Ghanaian court which provided that she have custody of the child. The orders further provided for the father to see the child.

    ·Between 2011 and the middle of 2014, the father travelled to Ghana to see the child for a period of four weeks per year.

    ·On 21 August 2013 the father removed the child from Ghana without the mother’s consent and brought him to Australia.  The mother sought assistance from the authorities to secure the child’s return.  The father returned the child to Ghana.

    ·On 6 August 2014 the father applied to the High Court in Ghana for orders which would allow him to bring the child to Australia for a holiday.  That application was not heard and ultimately withdrawn.

    ·On 21 July 2015 the father commenced proceedings in the Ghanaian High Court seeking orders that specified the time that he would spend with the child.

    ·On 17 August 2015 the father removed the child from Ghana for a holiday in Australia with the mother’s permission. The mother’s permission was given on the basis that the child would be returned to Ghana for the commencement of the school term on 9 September 2015. The father wrote to the mother and told her that the child would return to Ghana on 3 September 2015.  He did not.

    ·The father filed an application for parenting orders in the Federal Circuit Court in March 2016.

    ·The mother commenced proceedings in the High Court of Ghana for assistance in having the child returned to Ghana and on 13 May 2016 ex-parte orders were made that the child be returned.

The trial judge’s reasons

1. At the outset of the trial, both the mother and father asked his Honour to make orders.  The mother sought orders that the child be forthwith returned to her care in Ghana and the father sought orders that he have sole parental responsibility, that the child should live with him and that some form of electronic communication could take place between the mother and child from Australia.  His Honour identified the issue for determination as whether the child is better off living with his mother in Ghana or with his father in Australia (at [33]).

2. His Honour noted that the father was critical of the mother’s attention to the child’s health and education and he concluded that he was not persuaded that had been any deficiency of medical care for the child (at [34]), nor could he find that the education provided for the child in Ghana was inadequate (at [35]).

3. His Honour noted the submission of the father that if the child was subject to orders made in the Ghanaian courts it would be contrary to the child’s best interests and found that the evidence did not permit that conclusion to be drawn (at [37]).

4. The father contended before his Honour that the mother had interfered with his time with the child in Ghana in 2014.  After noting that the allegation was “neither denied nor accepted by the mother”, his Honour observed that if the mother had, in fact, obstructed the father’s time with the child, it could well be reflective of the father’s action in unilaterally removing the child from Ghana in 2013.  However, his Honour then said:

   38. …Of greater significance is the father’s withholding of [the child] from his mother as long term primary carer. If the capacity of the father is examined through the same lens as has been sought to be applied to the mother then his actions paint a bleaker picture of his capacity.

5. His Honour did not accept the argument mounted on behalf of the father that to return the child to Ghana would be detrimental for him if final orders were then made that the child be returned to Australia.  On this issue, his Honour noted the father’s evidence that the child did not appear to be suffering any adverse effect from the changes in his living circumstances wrought by the father’s actions, especially as his Honour observed, the change to Australia was unfamiliar to the child whereas the return to his mother was a return to the familiar (at [40]).

The child’s best interests

1. Turning to the primary considerations under s 60CC of the Family Law Act 1975 (Cth) (“the Act”), his Honour concluded that there was a benefit to the child of a meaningful relationship with both of his parents and found that the mother has persevered in fostering that relationship with the father, even in the face of the father’s removal of the child in 2013. His Honour found that the father had a limited capacity or will to foster the child’s relationship with his mother. His Honour noted that the father did not assert that if the child returned to Ghana, it would operate to destroy the relationship with the father (at [46]).

2. His Honour concluded:

   51. Whatever orders are made here involve a degree of change of circumstances for [the child], and each includes an aspect of separation from a parent.  There is no neutral position.  If he remains in Australia then he is separated from his mother and previous home for an unknown period.  If he returns to Ghana then he is separated from his father.  Of the two sets of circumstances, remaining in Australia constitutes the more significant change of circumstances.  The mother is unable to come to Australia without a visa, whereas the father has regularly visited in Ghana (although it is unknown whether his actions in retaining [the child] will constitute a barrier to further opportunities to seeing [the child] in Ghana).  The mother has been the parent with whom he has lived since a baby, and the criticism made of her by the father is of limited significance.  At present, separation from the mother is of greater significance than a potential separation from the father.

3. While acknowledging the difficulty in maintaining the relationships of the parents with the child where one parent is in Ghana and the other in Australia, his Honour concluded that the maintenance of the mother’s relationship which the child had with her before the father’s act of removal of him from Ghana would be substantially affected.  On the other hand, his Honour noted that the father had, in the past been able to travel to Ghana to spend time with the child (at [52]).

4. The trial judge found at [54] that the father’s action in retaining the child “displays little concern for the significance of the relationship between [the child] and his mother.”

5. His Honour concluded, having regard to the matters contained in s 60CC of the Act that it is in the child’s best interests to live with his mother and that he “promptly” be returned to her care in Ghana (at [63]). This conclusion was driven by his Honour’s findings that that the father’s actions of taking and retaining the child conflicted with the child’s relationship with the mother; that the removal of the child to Australia had effected a serious disruption of the child’s living circumstances; that the reasons for removing the child from Ghana proffered by the father “at their highest, appear[ed] to be of marginal benefit to [the child]”; and that the mother had no capacity to come to Australia (at [62]).

6. The trial judge considered the consequences of an order that the child be returned to his mother in Ghana, one of which was that the mother might not return to Australia to participate in any further hearing of the matter (although his Honour acknowledged that there was no evidence from the mother on this point).  If she did not return, his Honour said, it would mean that the Court could not give a fuller consideration of the best interest issues but, his Honour also took into account that if the hearing continued in Australia there was no guarantee that the mother could attend the hearing.  Addressing the possibility that the child might not be returned from Ghana if so ordered, his Honour noted that it would have the effect of bringing an end to the Australian proceedings and said:

   57. …Although it would not mean that the matter would be determined on an ultimate assessment of how the best interests applied when the evidence was fully tested, the potentially adverse result is limited, given that the nature of the assertions made by the father in relation to the health and education of [the child] are only marginally adverse.  The most serious effect is the potential future limitation on the role of the father should [the child] return to Ghana, again a matter that the evidence does not allow to be quantified.

7. His Honour concluded that the benefit to the child of being promptly returned to his mother outweighed the possible detriment of there not being a further, fuller hearing of the parenting issues.

Appointment of an Independent Children's Lawyer

1. The father sought an order that an Independent Children's Lawyer be appointed to bring to the Court the child’s views.  The mother opposed the order, it being sought merely to have the child’s views represented.  That order was refused.  His Honour noted that there was some contention as to whether the father could, if the order be made, pay his share of the costs of any report commissioned (at [43]).  His Honour determined that, on an interim basis, the delay occasioned in appointing an Independent Children’s Lawyer and in obtaining a report militated against the making of the order (at [44]).

2. His Honour found that there was no cogent evidence of the child’s views or of his understanding of the ramifications of holding views.  He concluded that they were not relevant to his present determination (at [47]).

Discussion

1. It is perhaps useful to set out the law relevant to the matter before his Honour because it seems to us that some unnecessary confusion attended the proceedings and the determination of the issue.

2. What was before his Honour was a matter which required him to determine in which forum, Australia or Ghana, the parenting dispute about the child was to be heard.  The determination of that question is to be had by reference to the child’s best interests.  At the outset of her oral submissions, as she did in her written argument to his Honour, the advocate for the mother clearly identified the issue by reference to ZP v PS (1994) 181 CLR 639 and said:

   …where the court was considering proceedings under this Act where the issue for determination was whether a child in Australia having been removed in Australia from a foreign jurisdiction should be returned to that jurisdiction so the foreign court could formalise the parenting issues regarding that child.  And, your Honour, in that case the High Court held the decision to be made by the court was to be made in accordance with the exercise of the court’s welfare jurisdiction and, therefore, should be in accordance with the child’s best interests. 

   (Transcript 3 June 2016, page 8 line 21-28)

3. She further referred his Honour to Pascarl & Oxley (2013) FLC 93-536 and said:

   …And in that matter the Full Court distilled the authorities in respect of abduction of children and noted that in cases where a child had been abducted from a non-Hague Convention country it may be appropriate for a court to conduct a speedy summary hearing and to order the return of the child.  And, of course, that’s our application today.

   (Transcript 3 June 2016, page 8 line 43 - 47)

4. The advocate for the mother addressed his Honour on the issues relevant to the determination of best interests and forum, arguing that Ghana was the appropriate forum in which the dispute should be heard because:

   ·The child had lived primarily with his mother (in Ghana) for eight and a half years;

   ·The arrangements in relation to the child had been formalised by orders of the court in Ghana (which ordered the mother to have custody of the child) and from which the father had not appealed, nor sought to change;

   ·The father had invoked the jurisdiction of the Ghanaian High Court;

   ·The mother had met the medical, emotional and intellectual needs of the child;

   ·The mother had facilitated a relationship between the father and the child;

   ·The mother is unable to travel to Australia for the purposes of the proceedings or to see the child;

   ·The father is a Ghanaian national and has in the past instructed Ghanaian lawyers to act on his behalf in the Ghanaian court system;

   ·In accordance with ZP v PS the court should take into account in determining welfare, public policy considerations which discourage removing children from their homeland in breach of orders; and

   ·It is, again, in accordance with the determination of ZP v PS appropriate that the parenting dispute be heard in the child’s habitual place of residence.

5. The mother’s advocate then said:

   So, your Honour, on that basis we’re seeking that the application of the father be dismissed today and we’re seeking the orders in our application. 

   (Transcript 3 June 2016, page 10 line 4-5)

6. She concluded her submissions by saying:

   Well, your Honour in our view, the appropriate jurisdiction for this matter is the Ghanaian court. And the matter is more properly … better determined in that court given that the child has lived in that jurisdiction and the child has been ordinarily resident in that jurisdiction for the last eight and a half years…

   (Transcript 3 June 2016, page 11 lines 23 – 27)

7. The advocate’s articulation of the law and the principles and her application of the facts to those principles was entirely correct.  Regrettably the focus of the hearing deflected from that point.

8. The mother’s response to the father’s application sought orders that the child be returned to her care in Ghana and that the father’s application be otherwise “dismissed”. 

9. It was not the mother’s position that the father’s application should be summarily dismissed.  In the case outline filed on behalf of the mother it was said:

   10. The Court’s jurisdiction was regularly invoked however the Court must consider whether it is in the child’s best interests to make a summary order for his return to Ghana, as discussed below.

10. However, when the matter first came before his Honour on 23 May 2016, he remarked to those then appearing that it was listed for directions and his Honour commented that the first matter to be dealt with was the application for summary dismissal.  He was not disabused of this misapprehension.  Again, when his Honour commenced the hearing on 3 June 2016, he observed to both parties that the matter was listed to deal with “what was styled as a summary dismissal application”. His Honour returned to this issue and, again noting that the matter had been listed for summary dismissal, asked the advocate for the mother whether the matter was to be conducted in that manner.  In response, the advocate said:

    Well, your Honour, we thought we – our application is for summary dismissal of the application. …

    (Transcript 3 June 2016, page 5 line 12-13)

11. In the course of her submissions to his Honour, the advocate for the mother identified the mother’s application “for summary dismissal [which] should be determined pursuant to section 67ZC of the Act.” She then referred to the need to determine the child’s best interest.

12. His Honour said:

    HIS HONOUR:   Just focusing for a moment on the question of dismissal, what I want to drill down to is by what principle would I simply dismiss the father’s application on your case.  And what you’ve identified is you say that Ghana is a better venue to hear the case.

    [ADVOCATE FOR THE MOTHER]:   It’s not a better venue.  It’s just the appropriate venue given the child is ordinarily resident in Ghana.

    (Transcript 3 June 2016, page 11 line 33-39)

1. His Honour then took the mother’s representative to r 10.12 of the Family Law Rules 2004 (“the Rules”) and asked her to specify which of the referred to bases for summary dismissal she relied on for her application. Rather than repeat her argument that his Honour’s determination of the issue was to have a summary hearing as to forum, she said that she relied on r 10.12 (c) and (d), and that the father’s application should be dismissed because the proceedings were “frivolous, vexations or an abuse of process or there is no reasonable likelihood of success.”

2. Counsel for the father argued to his Honour, correctly with respect, that the father’s case could not be so characterised and should not be summarily dismissed.

3. We do not understand how a summary hearing as sought in the mother’s case outline segued to summary dismissal, but having determined that the father’s case would not be dismissed, the focus in the hearing never returned to the issue of the forum for the resolution of the parties’ parenting dispute. Instead, the focus of the hearing turned to a consideration of s 65DAA of the Act, by way of a reference to Goode and Goode (2006) FLC 93-286 and his Honour embarked on a consideration of equal shared parental responsibility which culminated in him making interim parenting orders with a view to a final hearing of the dispute to take place in Australia.

4. His Honour, after raising the prospect of making interim parenting orders, turned to the question of where the child should live in the meantime.  As we have said, he ordered the child to be returned to Ghana to live with his mother and anticipated making directions for the further hearing of the parenting issues.

5. As a consequence, in the general confusion, sight was lost of the very principles to which the advocate for the mother took his Honour at the outset; that is, whether the best interests of the child required him to be returned to Ghana and for the court there to determine the parenting dispute between the parents. 

6. There being no contention that Ghana was the country of the child’s residence up until the time he was brought to Australia and retained here by the father without the mother’s consent, it is appropriate to commence a discussion of the relevant legal principles with ZP v PS (1994) 181 CLR 639.

7. In ZP v PS at 647 - 648, Mason CJ, Toohey and McHugh JJ said, apropos the exercise of jurisdiction in relation to a child brought to Australia from a non‑Hague convention country without the knowledge and consent of the other parent and, after finding that the doctrine of forum non conveniens had no application to the issue:

   …In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.

   However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction.

   (Footnotes omitted)

8. Their Honours at 648 quoted with approval the statement by Neill LJ in In re F. (Abduction: Custody Rights) [1991] Fam 25 at 32:

   The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.

9. Their Honours continued, saying at 648, that when the question arises whether the Family Court or a foreign court should determine the issues of custody of children:

   …In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that the Court should embark on determining the issue of custody itself.

10. In Kwon and Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559) the Full Court said, after reviewing the authorities:

    83. …We consider the following principles can be distilled from authority:

    …

    (vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction.  In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;

    …

11. In ZP v PS in the joint judgment of Brennan and Dawson JJ,  their Honours

    
    

    at 663 adopted the following passage of Buckley L.J. in In re
    L (Minors) [1974] 1 WLR 250 at 264 - 265:

    To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts … which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly.  An order that the child be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country, may well be regarded as being in the best interests of the child.

12. We note however that no ground of appeal challenges his Honour’s approach to the issue nor did the respondent bring a cross appeal or file a Notice of Contention. Thus we turn to the challenges to his Honour’s orders raised in the Notice of Appeal.

The appeal

1. The father asserted five grounds of challenge to his Honour’s orders.  The grounds can be distilled to three issues:

   ·His Honour erred in refusing to appoint an Independent Children’s Lawyer to enable the child’s views to be before the court and to enable a report to be obtained in which the child’s views are set out;

   ·In ordering the return of the child to Ghana the trial judge failed to give sufficient weight to the risk that the child may not be returned to Australia for any further hearing into the parenting issues; and

   ·That the trial judge gave too much weight to the evidence that the mother may not be able to travel to Australia to take part in further proceedings in this country.

The appointment of an Independent Children's Lawyer

1. It was contended for the father that in the circumstance of the present case, the appointment of an Independent Children’s Lawyer was necessary and required.

2. The appointment of an Independent Children’s Lawyer and the preparation of a report on the child’s views was not an order sought in the father’s application nor was it sought when the matter first came before his Honour in May 2016

   It was however raised in oral submissions to his Honour on 3 June 2016 by counsel then appearing for the father who said that the child “wants to remain here with his father. And he has expressed those desires.  I may be jumping ahead of myself, but I’m submitting that there should be an ICL here” (Transcript 3 June 2016, page 3 lines 18 – 20).

3. The basis of the submission about the child’s views was identified as paragraph 130 of the father’s affidavit which is in the following terms:

   130. Soon after his arrival in Australia, [the child] advised me he would like to stay in Australia if I agreed.  I agreed and told him Australia is his home.

4. After hearing submissions, his Honour said to counsel for the father “what else do you want to say about whether I should make interim orders for [the child] to return to Ghana, pending the disposition of the proceedings?”  Counsel argued against that course but made no mention of either the appointment of an Independent Children’s Lawyer and a report about the child’s views as being critical to the making of that decision.  The issue then moved to the further conduct of the proceedings and how quickly the matter could be readied for hearing. At this point counsel for the father said:

   [COUNSEL FOR THE FATHER]: …It’s a matter of whether your Honour sees fit that the independent child lawyer be present, because one of their obligations is to talk to the child and see what he wants.  I think other than that it’s pretty much ready.  But that’s an important factor that I ask your Honour to consider, because it may cut to the chase one way or the other what the boy really wants and what’s in his best interests objectively – as an ICL must be – and I just don’t know how quickly that can occur.  But subject to that, we’re pretty much ready to go.

   HIS HONOUR: Subject to an ICL, or some method, I assume, of getting [the child’s] wishes before the court?

   [COUNSEL FOR THE FATHER]:   Yes, that’s correct, your Honour.

   HIS HONOUR: Is your client in a position to fund an expert for that purpose, [the child’s] wishes?

   [COUNSEL FOR THE FATHER]: I think we’re talking 1100 max.  I think he can handle that.

   (Transcript 3 June 2016, page 25 lines 13 - 30)

5. The mother’s advocate contended that it was not appropriate to appoint an Independent Children’s Lawyer merely to convey the views of the child to the Court.  She asserted that the time taken for an Independent Children’s Lawyer to be appointed (given that the mother was already represented by Legal Aid and therefore it would be necessary to appoint a private solicitor to act as Independent Children’s Lawyer) would be some six weeks, and the commissioning of a report would take six months and incur a cost of between $6,000 to $10,000.  No issue was taken by counsel for the father as to either of these estimates, nor, in our view could it have been, as it accords with the ordinary experience of the Court.

6. The mother’s advocate submitted on this issue:

   On the issue of views:  there’s no real evidence of the child’s views.  What the father has put forward is not really evidence of the child’s views at all; it’s his interpretation, or it’s his claim of – no, I withdraw that.  What the father puts forward as the views of the child is not evidence of the views of the child.  It’s evidence of what conclusions he has made about whatever the child has said to him, and we have no evidence of what the child said to him, and when and in what circumstances, and so forth.  So your Honour is unable to make any determination about what the child’s views are.  There’s no evidence at all about the child’s maturity or level of understanding that your Honour could attach to the child’s alleged views.

   (Transcript 3 June 2016, page 31 lines 10 - 18)

7. After the mother’s advocate completed her submissions, his Honour observed to the father’s counsel that he had not addressed the s 60CC matters and invited those submissions. In the course of making those submissions, counsel said:

   And as far as the view of the child, that’s a matter where I would end [sic] to lean toward an independent consultant, qualified, paid for by the husband, which shouldn’t affect the professional … to find out whether the child is genuine.

   (Transcript 3 June 2016, page 33 lines 29 - 32)

8. His Honour ultimately concluded that the delay associated with the appointment of an Independent Children’s Lawyer in the circumstances of the case was outweighed by the assistance an Independent Children’s Lawyer could afford the court in considering where the child would live (at [44]).  His Honour was alive to the circumstances then before him that there was “almost no evidence” of the child’s views but considered that they could be explored at a later hearing (at [64]).

9. The thrust of the father’s argument on appeal was that where the trial judge was contemplating making an order for the return of the child to Ghana after having lived in Australia for ten months, it was incumbent on his Honour to appoint an Independent Children’s Lawyer and obtain the views of the child.  It was said that this was especially the case when his Honour’s orders could amount to the “end game” for this child.  By this expression, we understand counsel to be referring to the risk that once returned to Ghana and his mother, the child may not be returned to Australia if further proceedings here resulted in that being ordered.  Of course, this submission ignores the possibility that the child may indeed be returned by his mother, or that the father could travel to Ghana to participate in further parenting proceedings.

10. Further, it was submitted that his Honour failed to give sufficient reasons to support his determination not to appoint the Independent Children’s Lawyer.

11. As to the second of these contentions, the evidence before his Honour as to the time necessary for an Independent Children’s Lawyer to be appointed and then for a report to be obtained, and the evidence as to the cost of the preparation of the report, a cost clearly unable to be shouldered even as to half by the father, provide ample reasons for declining to make the order.  As to whether or not the orders would prove to be final orders, this too was a matter to which his Honour turned his mind in considering the ramifications of the order that the child be returned to Ghana and concluded that the benefit to the child of being promptly returned to his mother outweighed the risk that the orders may in fact turn out to be final (at [65]).

12. It is apposite to consider what was said by the Full Court in Bondelmonte & Bondelmonte (2016) FLC 93-698. That case concerned the return of children taken to and retained in New York and the father’s assertion that they did not wish to return to Australia and that a report should be obtained to have those views put before the Court before a decision was made about whether to order the children’s return to Australia. The trial judge declined to order a report, in relation to which the Full Court said at 81,171 – 81,172:

    108. In our view, the approach adopted by his Honour was open to him.  In ZP v PS (1994) 181 CLR 639 at 664 per Brennan and Dawson JJ, their Honours explained “…And it may be entirely appropriate to order the speedy return of the child to the country from which he or she has been abducted [or retained] without making as full an inquiry as the Court would ordinarily make in determining an application for permanent custody…”.

    109. It is appropriate to also refer to the remarks of Deane and Gaudron JJ at 670 that the abduction (or as in this case retention) of children across national boundaries will almost invariably (as it does here):

    … involve the infringement of the legitimate claims of the members of the child’s immediate or extended family from whose custody or environment the child has been unlawfully taken. A court concerned with the welfare of the child will be conscious of the irreparable damage which might be done to the child’s ties with those members of his or her immediate or extended family and with his or her homeland if it effectively overrides those legitimate claims by immediately embarking upon a lengthy hearing to determine what it considers to be the desirable final resolution of competing claims and allegations bearing upon the ultimate welfare of the child…

13. His Honour’s determination to not appoint an Independent Children’s Lawyer in the circumstances before him was entirely open to him.  This is especially so where he was astute to the child’s circumstances; having been removed from his primary carer and retained in a land not his own, to delay a consideration of whether he should be returned by six weeks, or six months was not in the child’s interest.

14. Also comprehended in the submissions concerning the appointment of an Independent Children’s Lawyer is an asserted error in failing to allow the father to fund and obtain a report on the child’s views.  

15. This issue may be swiftly disposed of.  The submissions on behalf of the father were essentially to the appointment of an Independent Children’s Lawyer to convey the child’s views to the Court.  It was only in response to his Honour’s questions, following the submissions made on the mother’s behalf about the cost of obtaining a report, as to whether the father could fund the provision of a report, that it was said that the father could contribute to the cost of a report to the maximum of $1,100 and the father’s counsel contended for a report from an expert about the child’s views.  There was no application before the Court or even a suggestion to his Honour that the father wished to obtain and fund a report himself. 

16. While the statements by the father’s counsel raise the possibility of an Independent Children’s Lawyer being appointed and a report being prepared about the child’s views, nowhere was it submitted to his Honour, as it was sought to be agitated on appeal, that no step, and certainly no step as critical as returning a child home to his mother, should be taken without those two events occurring.  The father’s case at trial was run on the basis that his Honour would make an interim order about with whom the child would live and give further consideration to the issues of an Independent Children’s Lawyer and a report, later.  That is what his Honour did.

17. Counsel for the father contended that the trial judge ought to have, of his own motion, adjourned the hearing and appointed an Independent Children’s Lawyer, given the importance of the issue.  We reject that contention.  First, his Honour was not asked to adjourn the matter and the transcript of the proceedings as to the conduct of the case for the father makes it clear that the issue of the Independent Children’s Lawyer and any report about the child’s wishes was very much considered to be a matter for any further hearing.  Quite why, when it was not sought for the father, his Honour ought to have adjourned the matter was not explained, and we reject the suggestion.

18. Recourse was had to the decision of Maldera & Orbell (2014) FLC 93-602 to support the argument that to order an Independent Children’s Lawyer to obtain the child’s views was critical to his Honour’s decision and to fail to obtain one was an error. That case is entirely distinguishable on its facts. There, the hearing was for final orders in circumstances where the child issues memorandum flagged concerns that more information was required to understand the child’s views. It did not concern itself with the making of a return order for a child retained in a foreign country pending further orders.

19. It was further argued that the principles enunciated in ZP v PS and other cases related only to matters in which the issue had been promptly brought to the attention of the court in the country in which the child was retained.  Here, it was argued, some ten months had elapsed before the mother filed anything in the Australian courts and that was a response to the father’s application.  Thus it was argued that those principles do not apply.

1. It is important here to observe that the father removed the child from Ghana promising to return him ready for the commencement of the school term.  Attached to the mother’s affidavit is an email from the father to that effect.  On 28 August 2015 the father told the mother that the child’s return would be delayed because the father was attending to some dental treatment for the boy.  The mother sent to the father a report from the child’s dentist and requested the child be returned.  She deposes that she continued to ask the father to return the child.  In October 2015 she sought assistance from the Ghanaian High Commissioner and from International Social Service Australia.  On

   
   

   4 March 2016 she and the father participated in family dispute resolution to try and reach agreement about the child.  That was unsuccessful.  The father commenced proceedings in Australia in March 2016 and, as we have earlier mentioned, the mother commenced proceedings in the High Court of Ghana.

2. What does or does not amount to promptly bringing a matter to court is a matter dependent on the facts of the case.  Clearly here, the parties, or at least the mother was attempting to secure the return of the child well before the father filed his application. 

3. It is of course plain that ZP v PS speaks to the determination of forum and his Honour did not make that determination, but he was dealing with the issue of with whom the child would live pending the determination of the appropriate forum or the final hearing in Australia should that occur.  However, much of what the High Court said in that case resonates with the issues being determined by his Honour in this case.

4. In that case Mason CJ, Toohey and McHugh JJ said at 653:

   …it is the duty of a judge to determine what the welfare of the child requires without regarding that question as being foreclosed simply because the child has been removed unilaterally from one country to another.  In the present case, the primary judge was entitled to have regard to the ordinary consequences of unilateral removal of the child from one country to another but it was his duty to go on to investigate the materials before him and, if considered appropriate, determine the question of custody of [the child].

5. That is what his Honour did and in so doing considered that it was in the child’s interests that he be returned to his mother without any further delay which would inevitably be the result of the appointment of an Independent Children’s Lawyer and the commissioning of a report.  It is important too in this context to note that the father did not claim that returning the child to his mother exposed him to any risk of any nature.

6. This challenge, as indeed do the other issues raised on the appeal, concerns the exercise of the trial judge’s discretion. Such a challenge is determined by reference to the well-known principles set out in House v The King (1936) 55 CLR 499, which sets the bar to appellate intervention high. It is insufficient to demonstrate that judicial minds might differ as to the result; the appellant must show that the trial judge’s conclusion was “plainly wrong” (see Gronow v Gronow (1979) 144 CLR 513). In our view the appellant has failed to make good the challenge. The evidence before his Honour provided a compelling basis for the finding.

Failing to give sufficient weight to the possible risk that if the child was returned to Ghana he may not be returned

1. His Honour was well aware of the risk that the mother may not return the child to Australia if an order for his return to her care in Ghana was made.  He considered it “possible” that she might not return, and acknowledged that in that event, there was no power in the court to compel her return.  He assessed the impact of the risk eventuating being that the court could not give the child’s best interests a fuller consideration.  Against that, his Honour considered the risk that if the child remained in Australia and the hearing continued here, the mother would not be able to come to Australia for that purpose.  He acknowledged that that situation too would be “unsatisfactory”.

2. He concluded:

   57. …although the retention of [the child] in Ghana carries with it the consequence of a complete end of the evaluation of the case in Australia, meaning that the matter would be practically resolved on the basis of largely untested evidence.  This in turn must be understood in the context of the factual matters raised by each of the parties.  Although it would not mean that the matter would be determined on an ultimate assessment of how the best interests applied when the evidence was fully tested, the potentially adverse result is limited, given that the nature of the assertions made by the father in relation to the health and education of [the child] are only marginally adverse.  The most serious effect is the potential future limitation of the role of the father should [the child] return to Ghana, again a matter that the evidence does not allow to be quantified.

3. As we have already indicated, his Honour ultimately concluded that the risk that the mother would not return the child to Australia and thus deprive the court of a further opportunity to assess his best interests was outweighed by the benefit of returning the child to the care of his primary caregiver (at [65]).

4. In support of the argument it was contended that his Honour’s conclusions were based on “speculation rather than evidence”.  Evaluation of the likelihood of occurrence of a risk must involve a degree of speculation.  His Honour assessed the competing scenaria and considered the consequences if the posited risk eventuated.  He proceeded on the basis that if the mother did not return the child to Australia it would, in effect, bring the proceedings before him to an end, but balancing the child’s best interests his Honour found that the eventuation of that risk was not outweighed by the benefit to the child of being taken back to his mother.

5. Thus we conclude that his Honour did indeed take this risk into account in coming to his conclusion and this approach was one open to him and we find no support for the contended error.

Giving too much weight to whether the mother may not be able to travel to Australia to take part in future proceedings

1. It was the mother’s case before his Honour that she could not afford travel to Australia and could not obtain a visa for that travel.   

2. Apart from making a submission that the Court would not accept the mother’s assertion that she was not able to travel to Australia, the father put no proposal to his Honour to provide the necessary funds or to provide her with the necessary assistance to enable her to come to Australia.

3. Indeed, it was only on the application for stay of his Honour’s orders that the father agreed to provide funds to enable the mother to travel to Australia and to support her financially here.  The agreement is reflected in his Honour’s stay order and it is clear from its terms that it was a matter of significance to his Honour in ordering the stay.

4. His Honour was entitled to accept the mother’s evidence that she was not able to travel and particularly so when no other evidence was put before him by the father.

5. This challenge is not made out.

Application to adduce further evidence

1. The father sought by an Application in an Appeal to adduce further evidence on the appeal.  The application was opposed.

2. The evidence, if adduced, is from the father and is to the effect that he is able to fund the mother’s travel to Australia and support her financially for the duration of any further hearing. The evidence was said to be relevant to his Honour’s consideration at [57] when evaluating the contingency that the mother may not be able to afford to return to Australia and participate in any further hearing of the parenting dispute.  This evidence suggests that his Honour could have more comfortably found that the father would be able to provide financial assistance to the mother to travel to Australia for any further hearing.  We cannot see how this evidence, if admitted, fits within any of the circumstances for the admission of further evidence on appeal as discussed in CDJ v VAJ (1998) 197 CLR 172 and the application will be dismissed.

3. None of the grounds of challenge having been made out, the appeal will thus be dismissed.

Costs

Ainslie-Wallace J

1. The appeal has been wholly unsuccessful.  The mother has sought an order in the sum of $3,910 for costs.  That application is opposed by the father on the basis that the appeal was one that challenged an important principle; that is, the international return of a child, and that although the father has secured a line of credit he is nonetheless saddled with considerable debt and has expenses. The father has indicated that he is going to accompany the child on his return trip to Ghana which will of course incur expense. 

2. The issue of costs on appeal is governed by s 117 of the Act and in particular

   
   

   s 117(2A) and the matters to take into account are that the appeal has been wholly unsuccessful and although the father says he has significant financial burdens we are not satisfied that that is a reason for him not to pay the mother’s costs. However, taking into account the relative impecuniosity of the father, we will make an order that the costs not be paid for a period of nine months so that he has nine months in which to make the payment. Therefore, I would order that the father pay the mother’s costs of and incidental to the appeal in the sum of $3,910, such costs to be paid within nine months of today’s date.

Ryan J

1. I agree with the reasons of the presiding judge on the proposed costs order.

Aldridge J      

1. I also agree with the reasons of the presiding judge on the proposed costs order.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered ex tempore on 27 September 2016.

Associate: 

Date:  5 October 2016