Brooke v Director General, Department of Community Services

[2002] FamCA 258

[2002] FamCA 258

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No EA12 of 2002
AT SYDNEY  File No SY5611 of 2001

BETWEEN:

SONJA BROOKE
Appellant
- and -
DIRECTOR GENERAL
DEPARTMENT OF COMMUNITY SERVICES
Respondent

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  KAY, HOLDEN & BARLOW JJ
DATE OF HEARING:                 11 April 2002
DATE OF JUDGMENT:             26 April 2002

APPEARANCES:  Mr Cumming, Solicitor, instructed by Hamish Cumming Family Lawyers, DX 11659 Sydney Downtown, appeared on behalf of the Appellant Mother.

Ms Hartstein of Counsel, instructed by Director of Legal Services, Department of Community Services, 164-174 Liverpool Street, Ashfield NSW 2131, appeared on behalf of the Respondent..

BROOKE v DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES
EA 12 of 2002
Coram:   Kay, Holden and Barlow JJ
Date of hearing:     12 April 2002
Date of judgment:  26 April 2002

CHILD ABDUCTION – Hague Convention on Child Abduction – Family Law (Child Abduction Convention) Regulations 1986 – meaning of ‘rights of custody’ – interim ne exeat order made pending residence proceedings – whether rights of custody vest in the court making the order.

The parents of a child born in July 1999 separated in Canada in March 2001. After separation the child remained in her mother’s care.

On 27 April 2001 the mother applied to the Supreme Court of British Columbia seeking, inter alia, orders for sole custody of the child and permission to take the child to live in Australia. On 14 May 2001the mother’s application was adjourned until 22 May 2001 and an order was made:

"That the child shall not be removed from the jurisdiction of this Court for a period of one week or until the hearing on the merits of the parties' respective applications."

At some date prior to 21 May 2001 the appellant left British Columbia (“BC”), together with the child, arriving in Australia on 21 May 2001. The Director General of the Department of Community Services, NSW, as the State Central Authority, filed an application seeking the return of the child to BC.

At trial it was conceded that, as a result of the operation of the BC statute, the father did not have ‘rights of custody’ to the child within the meaning given to that term in the Family Law (Child Abduction Convention) Regulations.

The only issue for determination before the trial Judge and on appeal was whether or not those rights of custody were vested in the Supreme Court of British Columbia when the child was removed from BC.

Lawrie J ordered the return of the child to BC.

The mother appealed. Counsel for the mother argued that overseas authorities were not applicable because the term ‘rights of custody’ in the Regulations was to be construed in terms of Australian law and not jurisprudence in relation to the Convention.

Held: in dismissing the appeal

(per Kay, Holden and Barlow JJ)

• At the time the child was removed by the mother from BC, the Supreme Court of British Columbia had the right to determine the place of residence of the child and had “rights of custody” over the child.

• Where a foreign court is properly seised of an issue as to where a child should reside, and where, whilst those proceedings are pending the child is removed from the jurisdiction of that Court without the consent of the Court, then, where an application is properly brought under the terms of the Family Law (Child Abduction Convention) Regulations 1986 in Australia, an Australian court is bound to recognise the rights of custody that repose in the foreign Court otherwise properly seised with the dispute where those rights of custody include the right to determine the place of residence of the child. Thomson v Thomson [1994] 3 SCR 551 and Re H (A Minor) [2000] 2 AC 291, [2000] 2 All ER 1 referred to.

APPEAL DISMISSED

REPORTABLE

1. On 11 April 2002 we heard and dismissed an appeal by the mother of B born 22 July 1999 against orders made by Lawrie J on 30 January 2002 requiring the return of the child to the province of British Columbia, Canada, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986. These are our reasons for dismissing the appeal.

1. The sole issue in the appeal is whether the Supreme Court of British Columbia was a body that had rights of custody in relation to the child in the context of the Regulations when the child was taken from Canada to Australia by her mother.

Background

1. B’s parents married in January 1998.  They were living in British Columbia when they separated on 21 March 2001.  After separation the child remained in her mother's care. 

1. On 27 April 2001 the mother applied to the Supreme Court of British Columbia seeking, inter alia, orders for sole custody of the child and proposing that her husband have “generous access to the child in the presence of an appropriate third party”.  She also sought:

"An Order pursuant to Section 35 of the Family Relations Act that the Plaintiff may change the place of residence of the child, from the lower mainland of British Columbia to Australia."

1. On 14 May 2001, after hearing from counsel for each of the parents, the wife's application was adjourned until 22 May 2001 and an order was made:

"That the child shall not be removed from the jurisdiction of this Court for a period of one week or until the hearing on the merits of the parties' respective applications."

1. In a letter written 14 May 2001 the father’s solicitors advised the mother’s solicitors that:

“I also expect that we will bring on our Notice of Motion with respect to an Order for joint custody, specified parenting time and a permanent Order that the child remain in the lower mainland until further Court Order.”

1. At some date prior to 21 May 2001 the appellant left British Columbia, together with the child, arriving in Australia on 21 May 2001.

1. The Australian Central Authority received a request from the Central Authority of British Columbia for the return of the child pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986. An application was filed in the Sydney Registry on 26 September 2001 by the Director General of the Department of Community Services, NSW, as the State Central Authority seeking the return of the child to British Columbia.

The judgment

1. When the matter came on for hearing before Lawrie J there was no dispute that the child had been habitually resident in British Columbia immediately before her removal to Australia.  There was no suggestion that the father of the child had in any way consented to the removal of the child.  It was conceded that the removal was in breach of the orders made by the Supreme Court of British Columbia on 14 May 2001.

1. Insofar as it is relevant the Family Relations Act [RSBC 1996] provides:

“Parental guardianship

…

27 (2) Subject to subsection (4), section 28 and section 30, if the father and mother of a child are or have been married to each other and are living separate and apart,

(a)  they are joint guardians of the estate of the child, and

(b)  the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.

…

(4) If a tribunal of competent jurisdiction

(a)makes absolute a decree of divorce,

(b)renders judgment granting a divorce and a certificate has been or could be issued under the Divorce Act (Canada) stating that the marriage was dissolved,

…

a person granted custody by order in the proceeding is sole guardian unless a tribunal of competent jurisdiction transfers custody or guardianship to another person.

Persons who may exercise custody

34 (1) Subject to subsection (2), the persons who may exercise custody over a child are as follows:

…

(b)if the father and mother live separate and apart, the parent with whom the child usually resides;

(c)if custody rights exist under a court order, the person who has those rights;

(d)if custody rights exist under a written agreement, the person to whom those rights are given.

…

Jurisdiction to make custody or access orders

35 (1) Subject to Part 3, a court may, on application, order that one or more persons may exercise custody over a child or have access to the child.

(1.1) The reference to ‘persons’ in subsection (1) includes parents, grandparents, other relatives of the child and persons who are not relatives of the child.

…

(4) An order for custody or access may include terms and conditions the court considers necessary and reasonable in the best interests of the child.”

1. For the purposes of the argument before Lawrie J it was conceded that, as a result of the operation of the British Columbian statute, B's father did not have “rights of custody” to the child within the meaning given to that term in the Family Law (Child Abduction Convention) Regulations.

1. The only issue for determination before the trial Judge and before us was whether or not those rights of custody were vested in the Supreme Court of British Columbia when the child was removed from British Columbia.

1. Lawrie J concluded:

“18.…I am satisfied that the child was removed from a convention country from which she was habitually resident when an institution or other body, namely the Supreme Court of British Colombia (sic) had a right of custody in relation to the child attributed to it and that, therefore, it is appropriate that the child be returned.”

Discussion

1. The Convention on the Civil Aspects of International Child Abduction (known commonly as “The Hague Convention”) has been incorporated into Australian domestic law via s 111B of the Family Law Act 1975 and the Family Law (Child Abduction Convention) Regulations 1986.

1. The relevant Regulations provide (emphasis added):

3         (1) A reference in these Regulations to the removal of a child is a reference to the removal of that child in breach of the rights of custody of a person, an institution or another body in relation to the child if, at the time of removal, those rights:

(a)were actually exercised, either jointly or alone; or

(b)would have been so exercised but for the removal of the child.

(2) A reference in these Regulations to the retention of a child is a reference to the retention of that child in breach of the rights of custody of a person, an institution or another body in relation to the child if, at the time of retention, those rights:

(a)were actually exercised, either jointly or alone; or

(b)would have been so exercised but for the retention of the child.”

4         (1)  For the purposes of these Regulations, a person, an institution or another body has rights of custody in relation to a child, if:

(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention.

(2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

(3) For the purposes of this regulation, rights of custody may arise:

(a)by operation of law; or

(b)by reason of a judicial or administrative decision; or

(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.”

1. The Convention on the Civil Aspects of International Child Abduction is set out in Schedule 1 to the Regulations.  Articles 3 and 5 of the Convention provide as follows:

“Article 3

The removal or the retention of a child is to be considered wrongful where

(a)it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

“Article 5

For the purposes of this Convention –

(a)‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b)‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.”

1. It was conceded both before the trial Judge and before us that there was no substantive difference between the wording of Regulations 3 and 4 and Articles 3 and 5.  It was submitted, however, that as the Regulations were domestic legislation it was appropriate to define and interpret the concepts of “rights of custody” as set out in the Regulations in an Australian context.  In those circumstances it was submitted that it could not be said that such rights could vest in a court.  The rights of custody were said to be akin to the personal rights attributable to parents of a child or to a statutory guardian such as a Director General of a welfare service where the child was the subject of an order under a State welfare law.

1. The concept of a court having “rights of custody” within the meaning of the Convention has been well established by judicial decisions at the highest appellate level in at least two common law countries.  The earlier of those decisions was the decision of the Supreme Court of Canada in Thomson v Thomson [1994] 3 SCR 551. La Forest J delivered the judgment on behalf of Lamer CJC, Sopinka, Gonthier, Cory and Iacobucci JJ. L'Heureux-Dubé and McLachlin JJ agreed with La Forest J's interpretation on this particular issue. His Honour said at page 588:

"...It seems to me that when a court has before it the issue of who shall be accorded custody of a child, and awards interim custody to one of the parents in the course of dealing with that issue, it has rights relating to the care and control of the child and, in particular, the right to determine the child's place of residence.  It has long been established that a court may be a body or institution capable of caring for the person of a child..."

1. In Re H (A Minor) [2000] 2 AC 291, [2000] 2 All ER 1 the House of Lords upheld a decision of the Court of Appeal, recognising that where there were pending proceedings before the District Court of Carrigaline in the Republic of Ireland concerning guardianship of and access to a child, the removal of the child from Ireland without the permission of the Court was a breach of the rights of custody attributable to the Court within the meaning of the Hague Convention.

1. Lord Mackay of Clashfern delivered the judgment of the House of Lords, concurred in by Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, and Lord Hutton.  His Lordship said at AC 302, All ER 24:

“The objects of the Convention are (a) to secure the prompt return of children wrongfully removed to or retained in any contracting state; and (b) to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states. Since this is an International Convention to be applied under a variety of systems of law it is right that it should be given a purposive construction in order to make as effective as possible the machinery set up under it. So approaching the matter it appears to me that the phrase in article 8 ‘any person, institution or other body claiming that a child has been removed or retained in breach of custody rights’ may include a court as an ‘other body’ particularly when one appreciates that the phraseology chosen was deliberately wide. Again the phrase ‘rights of custody’ are said by Article 5 for the purposes of this Convention to include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; many of the matters relating to the care of the person of the child will consist in duties and powers rather than rights in the narrow sense of that word and in particular the power to determine the child's place of residence being itself characterised as a right underlines the width that should be given to the word ‘rights’ in this Convention.”

and at AC 304, All ER 26:

“It is clear that the interpretation which has been accepted of the Convention which allows the possibility of a court having rights of custody does not contemplate that happening unless there is an application to the court in a particular case raising the issue of the custody of one or more children…

…I would think it a reasonable rule that at the latest when the proceedings have been served the jurisdiction has been invoked and unless the proceedings are stayed or some equivalent action has been taken I would treat the court's jurisdiction as being continuously invoked thereafter until the application is disposed of.” 

1. The issue has been the subject of a determination in Australia at first instance by Nicholson CJ in Secretary, Attorney-General's Department v TS (2001) FLC 93-063, 27 Fam LR 376. The Chief Justice was there dealing with a case involving a child who had been brought to Tasmania from New Zealand in circumstances where there were proceedings pending before the Family Court of New Zealand relating to the removal of the child from New Zealand. After an extensive discussion of the earlier English authorities, including Re H(A Minor) as decided by the Court of Appeal, the Chief Justice decided that it was appropriate to apply the English authorities in an Australian context.  He said at FLC 88,171, Fam LR 389:

“79     In the present case I agree with the view expressed by Hale J, that it would be a most unfortunate situation if a parent who was minded to remove a child from the jurisdiction could successfully do so at a time when he or she was aware that an application was pending in a court seeking to restrain such removal. 

80       It would seem to me that to hold that such an action did not breach the Convention would run contrary to the objects of the Convention and it is not a course that should be encouraged.”

Conclusion

1. In DL v Director General NSW Department of Community Services (1996) 187 CLR 640, (1996) FLC 92-706, and more recently in DP v Central Authority; JLM v NSW Department of Community Services (2001) 180 ALR 402, FLC 93-081, 27 Fam LR 596 the High Court has indicated that the task that an Australian court faces when dealing with an application brought under the Family Law (Child Abduction Convention) Regulations is to apply the Regulations to the facts established by the evidence. As Gaudron, Gummow and Hayne JJ said at ALR 409, FLC 88,386, Fam LR 576, para 25 in DP v Central Authority:

"It is the regulations that govern the disposition of these matters, not the Convention."

1. The words of the relevant Regulations are clear and unambiguous.  There was a removal of a child in breach of the rights of custody of a body that had the right to determine the place of residence of the child.  At the time of removal, those rights were actually being exercised.  Those rights of custody arose by operation of law and by reason of a judicial decision.

1. In our view, the evidence clearly discloses that at the time B was removed by her mother from British Columbia, the Supreme Court of British Columbia had the right to determine the place of residence of B and that the removal of B was in breach of that right. 

1. As we have already indicated, there was no challenge to the concept that B's place of habitual residence immediately before her removal was British Columbia.

1. In our view, no reason has been advanced by counsel on behalf of the appellant mother that should lead us to take any different approach in the interpretation of Regulation 4 to the approach adopted by the Supreme Court of Canada in Thomson v Thomson and by the House of Lords in Re H (A Minor) in their interpretation of Articles 3 and 5 of the Convention.

1. Where a foreign court is properly seised of an issue as to where a child should reside, and where, whilst those proceedings are pending the child is removed from the jurisdiction of that Court without the consent of the Court, then, where an application is properly brought under the terms of the Family Law (Child Abduction Convention) Regulations 1986 in Australia, an Australian court is bound to recognise the rights of custody that repose in the foreign Court otherwise properly seised with the dispute where those rights of custody include the right to determine the place of residence of the child.

1. We indicated at the hearing of these proceedings that the appeal would be dismissed and we made an order accordingly.

I certify that the 28 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate