BREEN & BREEN

[2014] FamCA 1030

FAMILY COURT OF AUSTRALIA

BREEN & BREEN [2014] FamCA 1030

FAMILY LAW – JURISDICTION – Whether the court has jurisdiction to make parenting orders where child in Australia on holidays is habitually resident in Ireland – Where existing custody orders in Ireland in favour of the mother – Where father asserts circumstances of urgency such as would permit the court to exercise jurisdiction under Article 11 of the 1996 Hague Child Protection Convention notwithstanding that the child is habitually resident in Ireland – Where finding made as to no circumstances of urgency as contemplated in the Convention such as to permit the court to exercise jurisdiction.

FAMILY LAW – ENFORCEMENT – Where parenting orders made in Ireland – Where it is appropriate that such orders be registered for enforcement under the Family Law Act 1975 (Cth) – Where appropriate in circumstances where the child is retained by the father contrary to existing orders that a Recovery Order issue to procure the return of the child to the mother – Where Recovery Order issued.

The Hague Convention of 19 October 1996 on Jurisdiction Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility, and Measures for the Protection for the Children
Family Law Act 1975 (Cth)

Bunyan & Lewis (3) 2013 FamCA 888

The Practical Handbook on the Operation of The Hague Convention of 19 October 1996, published by The Hague Conference on Private International Law, Permanent Bureau 2014

APPLICANT: Ms Breen

RESPONDENT: Mr Breen

FILE NUMBER: PAC 5392 of 2014

DATE DELIVERED: 17 November 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 17 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That there be a declaration that the order made on the 6 February 2008 by the Circuit Family Court, Dublin Circuit, County of the City of Dublin be registered under the Act for the purposes of enforcement.

2. That pursuant to section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the police forces of all the states and territories of Australia requiring them to find and recover the child, D born on … 1998, and to return or deliver the said child to the applicant mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any reasonable time cause to believe that the said child may be found.

3. That following the return of the child to the mother the father be restrained from contacting or approaching the said child pursuant to section 68B of the Act. 

4. That all outstanding applications before the court be dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5392 of 2014

Ms Breen

Applicant

And

Mr Breen

Respondent

REASONS FOR JUDGMENT

1. The present applications before the Court are of a parenting nature and relate to the child, X, born in 1998. 

2. The applicant mother filed an application on 11 November 2014.  The respondent to that application is the respondent father.

3. The mother, in summary seeks parenting orders in relation to the child in that:

   1)     She have sole parental responsibility;

   2)     That the child live with her, as per orders of the Dublin Circuit Family Court made on 6 February 2008;

   3)     The child spend time with the father as agreed between the parties; and

   4)     That the child be permitted to travel outside the Commonwealth of Australia. 

4. More importantly, the mother seeks interim orders that, in summary, provide for a recovery order to issue to procure the return of the child, X, to her care.

5. The background history of the relationship, in summary, is as follows.

6. The mother was born in 1963.  She is a carer’s assistant in Ireland, living in Dublin, Ireland at present.

7. The father was born in 1963.  He’s employed by an international airline in Sydney and presently resides it appears in Suburb Y.

8. The parties were married in 1990, thereafter separated under one roof for a period but finally separated in 2005, when the father left the then home and departed Ireland in August 2005 to return to Australia. 

9. The parties were divorced on 26 January 2010.

10. There are four relevant children.  The eldest child is Ms C, now aged 26, who is not a child of this relationship but a child born to the mother before this relationship.  Ms S now aged 23, is a child of this marriage.  The children Z, born in 1997, and X, born in 1998, are the youngest children of the marriage.

11. It is common ground that the two younger children, Z and X, have as their habitual residence, Ireland. 

12. The mother has provided to the Court, as annexed to her application and also annexed to one of her affidavits, a sealed copy of orders made in the Circuit Family Court, County of City of Dublin in Ireland, being orders made on 6 February 2008. 

13. Those orders provided for a decree of judicial separation and also provided that the mother have sole custody of the dependent children of the marriage, namely, at that time, Ms S, Z and X with no order as to access to the father. There were also ancillary orders that dealt with property and maintenance obligations not relevant for the present purpose.

The mother’s evidence

1. The mother, in support of her application, has filed three affidavits, and distilled from those affidavits and relevant to the present proceedings are the following facts as asserted by her.

2. The mother and two younger children, Z and X, came to Australia for the purpose of a holiday for the period between 23 October 2014 and 8 November 2014.

3. On 23 October 2014, the mother and the children arrived at Sydney International Airport and were met by her sister and brother-in-law, and subsequently they stayed with the sister and brother-in-law for a period.

4. That subsequent to the mother and children’s arrival the father had time with the children on a weekend and the children had some contact with their older sister, Ms S, and their older half-sister, Ms C. 

5. There is a significant history of conflict between the parties.

6. The mother’s sister informed the mother, subsequent to the mother and children’s arrival, that she had spoken to X in relation to matters raised by X and informed him that it was appropriate for him to finish school in Ireland, as he had only three years left in Ireland and that he could then come to Australia. 

7. Ms K, the mother’s sister, reported to the mother that the child, X, appeared confused about whether he should stay in Australia or go home.

8. On 3 November 2014, the father attended where the mother was staying and a comment was made by the child, X, in their presence, that if he lived with his father that the mother would need to support him on an ongoing basis.  The mother responded that was not to be the case unless herself, Z and X were all living together under the one roof in Australia. 

9. The mother complains that the father has paid no child support for the two younger children since February 2008.

10. On the evening of 3 November, an argument took place in the home of Mr K and his wife, Ms K.  The father, alleges the mother, threatened her in a very aggressive way that he was going to keep the child, X, in Australia.  He also aggressively verbally abused Mr and Ms K for being supportive of the mother and the children whilst they were in Australia.

11. After the argument on the evening of 3 November, the mother attended at Q Police Station to report the father’s threat to detain the child, X, in the country.  The mother made other inquiries from the Australian Embassy in Dublin, seeking to obtain copies of the Irish Court’s orders for the purposes of proceedings in this country, if necessary.

12. The children were, at a later time, staying with the father and/or their older siblings. The child, Z, texted the mother from the father’s mobile phone, informing the mother that she and her brother were going to stay overnight with their older sister Ms S. This was contrary to the arrangement where the children should have been returned that evening.  Ultimately the children stayed overnight.

13. On the following day, the mother arrived at the airport about 1:15pm to depart for Ireland with the children and found that the two younger children, the older half-sister and her boyfriend, were at the airport.  The child, Z, was at the airport with her suitcase, ready for travel, but the child, X, presented with no luggage.

14. The mother asked X if he was coming back to Ireland and he said no.  The mother tried to explain to him that his half-sister and the father were brainwashing him into staying in Australia and he should come home to finish his studies and he can come to Australia to live after he has finished school.

15. Thereafter X left with his half-sister, Ms C, and her boyfriend. The mother and the child, Z, went through check-in but then the mother decided she would remain in Australia to procure the child, X’s, return to Ireland so as to resume and complete his schooling.

16. The mother attaches to one of her affidavits a Statutory Declaration sworn by the father on 11 June 2014.  It appears that the Statutory Declaration had been prepared as a necessary precursor to the mother coming to Australia and making the two younger children, available to the father for time.  The Statutory Declaration by the father deposes as follows:

    I will abide by and meet all the demands relating to the legal custody given to [the mother] in regards to our children, [Z] and [X], and accept any requests made by [the mother] in relation to the custodial order in accordance with all Australian and international laws.

The father’s evidence

1. The father filed a response on 13 November 2014. 

2. The father in that response sought final orders in relation to the child, X, in the following terms: 

   1)     That the child, X, born in 1998, live with the father; 

   2)     That X spend time with the mother in accordance with his wishes; and

   3)     That X communicate with the mother in accordance with his wishes.

3. The father sought interim orders that provided:

   1)     For the child to live with the father; 

   2)     That a family consultant be appointed to speak to the child; 

   3)     That a date be set for a child-inclusive conference; 

   4)     The child spend time with the mother in accordance with his wishes;  and

   5)     The child communicate with the mother in accordance with his wishes.

4. The background history of the relationship in terms of the various relevant dates is not much in dispute.  It is common ground that the child, X, is now 16 years of age and is the only child the subject of the present application.

5. The father says that the parties separated under the one roof for about a year before he left the home in August 2005. 

6. In that year, he returned to Australia. 

7. The children remained in Ireland.  When he returned to Australia, Ms C was 17 years old, Ms S was 14 years old, Z was eight years old and X was seven years old.

8. The parties were divorced on 26 January 2010. 

9. The father contends in his affidavit that the Irish court orders enabled him to visit the children without notice to the mother.  No such order was made by the Irish Court.

10. The father deposes that he continued to pay child support.  That is a matter in contention between the parties and not a matter of consideration in the present proceedings.

11. The father says that the child, Ms S, in 2012 spoke to him when he was in Ireland, indicating her wish to move to Australia.  She did so when she was 21 years of age.  She moved in with the father’s parents in Brisbane for a period, then moved to Sydney to live with the father for a period and she now resides in a share apartment in Sydney’s eastern suburbs.

12. In November 2012, the younger children’s half-sibling, Ms C, moved from Ireland to Sydney.  She now lives with her boyfriend, Mr N, in Suburb O.

13. The father says that about four months ago the mother commenced contacting him to discuss the younger children coming to Australia for a holiday.  There were numerous text messages between the father and the mother in relation to the proposed holiday.

14. The mother finally informed the father that she was coming to Australia with Z and X in October, he says, adding “and you may see them if you are lucky”. That comment simply reflecting what appears to have been an historical conflictual relationship between the parties.

15. The father says that following their arrival, the mother, Z and X, were met by Ms C and him at the airport.  The mother, Z and X, were to stay with the father’s brother, Mr K, and his sister-in-law, Ms K, at their home.  They arrived on a Wednesday and on the following Friday, Z and X were to spend the weekend with the father, returning to the mother’s care on the following Monday morning.

16. The father says that during that weekend the child, X, said to him:

    Dad, I’ve decided to stay with you.  I brought everything I need with me from Ireland.  I’ve got all my [sports] medals and all the things I’m going to need. I’m not happy living with Mum and it would be better living with you and to be near my sisters.

17. The father says that the child, X, is a very talented sportsman. 

18. X is the Irish National Junior Champion three years in a row in his sport, perhaps achievements that reflect well on the mother’s involvement in the child’s life in Ireland in the absence of the father.

19. On 2 November, the father says he received a text message from the mother, the implication being that the mother was perhaps considering being able to remain in Australia permanently. The father then gives evidence of a conversation between him and the mother that took place in the presence of X.  The mother said to the child, “do you want to live in Australia?”  The child said “yes, I do”.  The mother said “well, if your dad sponsored me, we could all live together”.  X said “couldn’t I just stay in Australia anyway?” 

20. The father asserts that the mother responded by criticising the father for having no money, has a girlfriend, he has a dump of car and life would not be good. 

21. On 7 November, the child informed the father that he was going to tell the mother that he was not going to go back on the plane with her tomorrow – that is 8 November 2014.  The father overheard a conversation between the child and the mother, the inference from that conversation being the child informed the mother he wanted to stay in Australia with the father, and that the mother wanted the child to return to Ireland with her, asserting that the child’s non-return was breaching existing orders. 

22. On the evening of 7 November 2014, as previously referred, the children informed the mother that notwithstanding the arrangement for the children to be returned to her care that night in preparation for the flight back to Ireland the following morning, they had decided to stay the night with their sister.  The mother forwarded to the father a text message in reasonably indignant terms insisting that the children be returned to her by 10:00 pm.  That did not happen. Arrangements were made for the children to be at the airport at 1:00 pm the following day.  Those arrangements being made by text message between the mother and the child Z. 

23. The father says that on Saturday 8 November 2014, the day the children were to depart, that X and the father and Ms C went to Suburb W looking for more suitable apartment accommodation for the father to live in.  The father concedes that on that day he was spoken to by a constable of the New South Wales Police in relation to the child X’s circumstances, and he was warned by the police that if there was a breach of the Irish order and the mother seeks an order from court, then she may get an order for the child X to be arrested and put on a plane back to Ireland.  The father expressed some surprise to the police officer in relation to that comment. 

24. On 8 November the child’s half-sibling, Ms C, and her boyfriend, took Z and X to meet the mother at the check-in at the airport.  The mother and Z went through Immigration, and it appears that the father, Ms C, Mr N and X then departed towards the car park. 

25. The mother did not get on the plane and returned back through Immigration, and sent a text message as to her intention to seek orders that X be returned with her to Ireland.

26. The child Z wishes to return to Ireland to complete her studies. She is in her last year of study at school. 

27. The father says that the decision by X to remain in Australia is his decision. 

28. There is some circumspection or doubt about that from the mother’s perspective but, in any event, that would perhaps otherwise have waited a contested hearing, if there is ever to be one in this country.

29. The father says that he is happy and willing to support the child in his decision to remain in Australia.  That he proposes to find new accommodation closer to the child’s half-sibling Ms C, and the child’s sister Ms S.  He says he will live in the same home as the child. 

30. The father says that X and Ms C’s boyfriend, Mr N, have been attending local sports clubs to find a club with the facilities and team mates of X’s calibre in his sport.  He says X has had the opportunity to participate at a couple of these clubs already. 

31. Clearly the child has commenced to be enmeshed in the father’s plans for him to remain in Australia. 

32. The father says he has commenced making inquiries in relation to schools and is hopeful that the child’s sports talent may be attractive to a private school, particularly an eastern suburbs private school in Sydney.  X is about to go into year 11 next year. 

33. The father suggests that he has not detained the child in any way, and that is a decision made in a considered way by his son who is now 16. 

Discussion

1. The issues that confront the Court relate, of course, to Australia’s treaty obligations under the provisions of the 1996 Hague Child Protection Convention.  The Child Protection Convention in its full name is known as The Hague Convention of 19 October 1996 on Jurisdiction Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility, and Measures for the Protection for the Children.

2. Australia has been a signatory to that Convention for some years and Ireland, as a member of the European Economic Community, is also a signatory of that Convention. 

3. So as between Australia and Ireland, which is acknowledged to be the habitual residence of the children, Australia has obligations under that treaty.

4. The question for the Court to determine is whether it has any jurisdiction to make parenting orders or measures of protection, as they are referred to in the Convention, in relation to child. 

5. The answer to that lies in the terms of the Convention itself and to the applicability and effect of Part 13AA Division 4, “International Protection of Children” in the Family Law Act 1975 that implements into the Australian domestic law the 1996 Child Protection Convention.

6. The child lives in Ireland and he has done so, effectively, for the whole of his life.  

7. It is his habitual residence.

8. Section 111CD(1)(b) of the Family Law Act 1975, provides as follows:

   A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to –

   and the relevant provision is section 111CD(1)(b):

A child who is present in Australia and habitually resident in a Convention country, if:  

(i)the child’s protection requires taking the measure as a matter of urgency;  or

(ii)the measure is provisional and limited in its territorial effect to Australia;  or

(iii)the child is a refugee child;  or

(iv)a request to assume jurisdiction is made to the Court by, or at the invitation, of a competent authority of the country of the child’s habitual residence;  or

(v)a competent authority of the country of the child’s habitual residence agrees to the Court assuming jurisdiction;  or

(vi)the Court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage, subject to subsection (3).

1. Subsection (2) of section 111CD also provides as follows:

   A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.

2. The question comes down to whether, in terms of jurisdiction to make parenting orders in relation to the subject child, the provisions of section 111CD(1)(b)(i) apply. That is, whether the child’s protection requires taking of measures as a matter of urgency.

Child protection measure 

1. A child protection measure is defined in the Act to be a measure as directed to the protection of a child.  That, of course, includes orders in relation to parental responsibility, live with, time with access and injunctive relief as provided for in the Family Law Act.

2. Article 3 of the Convention provides that measures of protection may relevantly deal with the attribution, exercise, termination or restriction and delegation of parental responsibility, rights of custody, including rights relating to the care of the person of the child and, in particular, the rights to determine the child’s place of residence as well as rights of access, including the right to take the child for a limited period of time to a place other than the child’s habitual residence.

3. Clearly the orders presently sought are parenting orders being measures of protection as contemplated by the Convention. 

4. The question is whether, indeed, the orders can be made in circumstances as proposed by the father as being in circumstances of urgency so as to permit this court to exercise jurisdiction.

Is there urgency?

1. Article 11 of the Convention confers jurisdiction in cases of urgency to take necessary measures of protection in a contracting state – that is, Australia in this case – which is not the state of the child’s habitual residence on the basis that the child is present in that contracting state.

2. The child is present in Australia. 

3. The issue is whether this Court has jurisdiction there being circumstances of urgency. 

4. If the Court finds no circumstances of urgency, this Court has no jurisdiction to make any orders at all. 

5. Urgency is not defined in the 1996 Convention. 

6. The Practical Handbook on the Operation of The Hague Convention of 19 October 1996, published by The Hague Conference on Private International Law, Permanent Bureau 2014 provides the following assistance and guidance:

   (a)When is a case urgent? 

   6.2 The Convention does not provide a definition as to what constitutes “cases of urgency”.  It will, therefore, be a matter for judicial or administrative authorities in the contracting state in question to determine whether a particular situation is urgent. 

   The Explanatory Report states that a situation of urgency may be said to exist where, if measures of protection were only sought through the normal channels of Articles 5 to 10, (the general bases of jurisdiction), irreparable harm might be caused to the child, or the protection of the child, or interests of the child might be compromised.  A useful approach for authorities may, therefore, be to consider whether the child is likely to suffer irreparable harm, or have his or her protection or interests compromised if a measure is not taken to protect the child in a period that is likely to elapse before the authorities, with general jurisdiction under Articles 5 to 10, can take the necessary measures of protection.

   6.3 It should be noted that it is the situation of “urgency” that justifies the derogation from the general rules of jurisdiction under the Convention.  (Arts 5 to 10).  In the light of this, it has been stated that the concept of “urgency” ought to be interpreted rather strictly. 

   6.4 Examples of cases involving a situation of urgency might include: 

   (i)The child is outside the State of his or her habitual residence and medical treatment is required to save the child’s life, (or to prevent irreparable harm occurring to the child, or his interests being compromised), and parental consent cannot be obtained for the treatment,

   (ii)The child is exercising contact with a non-resident parent outside his or her State of habitual residence and makes allegations of physical or sexual abuse against the parent, such that contact needs to be suspended immediately and/or alternative temporary care found for the child... 

   6.5 Whilst there is no settled practice regarding what constitutes a “case of urgency” as yet, in these circumstances it is clearly for the competent authority hearing the return application to determine whether, on the facts of the particular case before it, the case is one of urgency such that Article 11 can be relied upon to take measures of protection to ensure the child’s safe return...

7. The above discussion provides assistance. It is clear that X’s protection does not require that the orders sought by the father, or any similar orders, be made “as a matter of urgency” within the meaning of s 111CD(1)(b)(i). There is no evidence adduced by the father or otherwise that X will suffer irreparable harm by returning to Ireland in the care of his mother and the company of his sister.

8. X is habitually resident in Ireland and parenting proceedings can be pursued by the father in courts in Ireland with ready access to information and evidence about X.

9. The concept of urgency and a general overview of the operation of the 1996 convention was undertaken by Bennett J in Bunyan & Lewis (3) 2013 FamCA 888. It is clear that one purpose of the Convention was to disentitle a disgruntled parent, such as the father in this case, from seeking to invoke the jurisdiction of the court of a country in which the child is not habitually resident in other than exceptional circumstances, which circumstances are not supported by the evidence in this case.     

10. The child is here on holidays as agreed by the child’s parents and has expressed a wish to remain. That issue requires careful consideration as to the child’s circumstances, the future proposals of both parents and the child’s best interests, undertaken in a measured and fair procedure, conducted in a principled way, within the state of X’s habitual residence.

11. The Court is satisfied that in the circumstances before it there is no circumstances of urgency that would facilitate that court exercising jurisdiction as contemplated by section 111CD(1)(b) of the Act. The issue is a matter for appropriate consideration by the court of the child’s habitual residence.

12. Accordingly, the applications for specific parenting orders in relation to parental responsibility, live with and time with as sought by the mother and the father in the context of the present application are all dismissed as this court is without jurisdiction.

Enforcement

1. The issue now for determination by the Court is whether the Court should proceed – as the mother seeks – to take enforcement measures pursuant to the provisions of the Convention. 

2. The measures of protection taken in one contracting state will be recognised by operation of law in all other contracting states as provided for in the Convention.  Recognition by “operation of law” means that it is not necessary to commence proceedings for the measure to be recognised in the requested Contracting State and for it to produce its effects here.

3. For an order – or a measure – that is the Irish orders in this case to be recognised their existence may need to be evidenced in Australia.  In order to avoid placing bureaucratic hurdles in the way of protection of children, the Convention does not have any formal requirements in this regard.  Usually production of the written document incorporating the measure will be sufficient. 

4. A sealed copy of the order made in the Irish Circuit Court has been provided to the Court as part of the mother’s case and the father in referring to the orders made by that court takes no issue with the orders.

5. The procedure set down by the convention in Article 26(1) is that an interested party – that is the mother, in this case – must request the measure of protection be declared enforceable or registered for the purposes of enforcement in Australia. Registration of recognised foreign measures is provided for the Family Law (Child Protection Convention) Regulations 2003 (see: Regulation 12). The father makes no application pursuant to regulation 15(2) or (3) to the effect that the orders made in the Family Court County Circuit Court in Ireland ought to be varied or cancelled on any of the grounds detailed therein.

6. The orders from Ireland will be registered and for the purposes of these proceedings the Court will declare that the order is registered in this Court for the purposes of enforcement under the Convention.

7. The Convention in Articles 26 and 28 provide that if a measure of protection taken by one contracting state is not being respected in another contracting state it may be necessary to commence enforcement proceedings in that latter contracting state. That latter state for the purposes of these proceedings is Australia.

8. It is clear that the father’s refusal to return the child to the mother is non-compliance by him with the orders of the Irish Court that indeed provide for no access by him to the children – or no defined access. 

9. The Court is required not to go behind the orders made by the Irish Court and in circumstances that come before the Court today there is no basis for so doing. 

10. The court has power under s 67U of the Act to make a recovery order in such circumstances as it thinks proper having regard to the child’s best interests. The best interest considerations are set out in s 60CC of the Act. In circumstances where this court has no jurisdiction the child’s best interests are served by the mother’s custody of the child being restored and the country of his habitual residence determining parenting issues. That can be achieved by the child being returned to the mother and returning to Ireland with his mother and sister. 

11. Accordingly, to facilitate enforcement of the order that has now been registered in this Court, the Court makes the orders as set out at the forefront of this judgment. 

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 November 2014.

Associate: 

Date:  17 November 2014