Brown and Burke

FAMILY COURT OF AUSTRALIA

BROWN & BURKE

[2007] FamCA 1421

FAMILY LAW – HAGUE CONVENTION – Declaration Regulation 17
FAMILY LAW – Rights of custody
FAMILY LAW – Rights of custody vested in a Court
FAMILY LAW – Discretion to Order

Family Law Act 1975 (Cth)
The Family Law Reform Act 1995 (Cth)
Family Law (Child Abduction Convention) Regulations 1986
Hague Convention on the Civil Aspects of International Child Abduction

Brooke & Director General Department of Community Services (2002) FLC 93-109; (2002) 29 Fam LR 121; [2002] FamCA 258.
C v C (abduction: rights of custody abroad) [1989] 2 All ER 465.
C v S (minor: abduction: illegitimate child) [1990] 2 All ER 449.
De L v Director-General NSW Department of Community Services (1996) 187 CLR 640 at 690.
Director General, Department of Family, Families Youth and Community Care v Thorpe (1997) 141 FLR 44; (1997) FLC 92-785.
G v C (Unreported, Family Court of Australia, Bell J, 1 May 1997).
In the Marriage of McCall, State Central Authority (1994) 121 FLR 45 sub nom McCall & McCall & State Central Authority & Attorney-General (1995) FLC 92-551; (1994) 18 Fam LR 307.
In the Marriage of Regino (1994) 122 FLR 314 sub nom Regino v Regino (1995) FLC 92-587.
Re H(child abduction: rights of custody) [2000] 1 FLR 2002
Re W; re B (child abduction: unmarried father) [1998] 2 FLR 146
Secretary Attorney General’s Department v TS (2000) 161 FLR 392; (2000) 27 Fam LR 376
Resina v Resina (unreported, Family Court of Australia, Barblett ACJ, Fogarty and Anderson JJ, 22 May 1991)
State Central Authority v Awob (1997) 137 FLR 283; (1997) FLC 92-746; (1997) 21 Fam LR 567
Wenceslas v Director General Department of Community Services [2007] FamCA 398.
Zafiropoulous & Secretary, Department of Human Services State Central Authority [2006] FLC 93-264 at 80,497; sub nom Re HZ v State Central Authority (2006) 35 Fam LR 489.

APPLICANT:

Mr Brown

RESPONDENT:

Ms Burke

FILE NUMBER:

BRC

3130

2007

DATE DELIVERED:

10 December 2007

PLACE DELIVERED:

Coffs Harbour

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

6-7 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Westbrook of Counsel

SOLICITOR FOR THE APPLICANT:

Carter Naughton Rice

COUNSEL FOR THE RESPONDENT:

Mr Byrne of Counsel

SOLICITOR FOR THE RESPONDENT:

A P Hodgson & Associates

ORDERS

Pursuant to Regulation 17 of the Family Law (Child Abduction Convention) Regulations it is HEREBY DECLARED that the removal of B born April 1999, from Australia to a Convention country, namely The Netherlands, on or about 12 April 2007, was wrongful under the laws of Australia within the meaning of Article 3 of The Hague Convention on the Civil Aspects of International Child Abduction.

IT IS DIRECTED THAT:

Any application for costs be:
(a) heard and determined by way of written application and submissions;
(b) subject to the parties’ submissions to the contrary, determined in chambers.

The parties file any such application for costs by not later than 21 days after the appeal by the Father in The Netherlands due to be filed by 14 December 2007, is heard and determined and any other time limitations be enlarged to allow that to occur.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Murphy delivered this day will for all publication and reporting purposes be referred to as Brown & Burke.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3130 of 2007

Mr Brown

Applicant

And

Ms Burke

Respondent

REASONS FOR JUDGMENT

The parties to these proceedings are involved in litigation in The Netherlands.
Those proceedings commenced with an application pursuant to The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) in respect of their child B, born in April, 1999 (“the child”).
Currently, the father wishes to file an application to a superior court (referred to variously in the material before me as “the High Court” and “the Supreme Court”) in The Netherlands having succeeded in an application for return of the child but having then been the respondent to a successful appeal by the mother before The Hague Court of Appeal.
The father contends that the child was wrongfully removed from Australia and/or has been wrongfully retained in The Netherlands.
He asserts that, despite consent orders made on 2 June, 2005 he had “rights of custody” as at 12 April, 2007 when the child and the mother relocated permanently to The Netherlands.
In the alternative, the father asserts that, if by reason of the consent Orders (or otherwise) he did not have “rights of custody”, those rights were vested on that date in the Federal Magistrates Court and the removal and/or retention is in breach of those rights.
In either event, the father contends that the removal was, as result of the contravention of those rights of custody, wrongful.
In circumstances that remain less than perfectly clear, the father seeks in the instant proceedings a Declaration pursuant to Regulation 17 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) to that effect.
It is contended that great urgency attends the obtaining of that Declaration. It is said that if the appeal in The Netherlands - with, it seems, the attendant Declaration – is not lodged in The Hague by 12 December, the right to appeal, at least to the extent that a Declaration is or might be relevant, will be lost.
It is the determination of that urgent application for a Regulation 17 Declaration to which these Reasons relate.
The father and the Central Authority join in each seeking the Declaration. The mother opposes it.

URGENCY

It was agreed by all parties at the hearing that this matter required urgent determination.
In particular, it was agreed by all parties that time cannot be extended in The Netherlands to allow (if the Dutch court is so minded) the Declaration to be used in the prospective appeal.
It was not suggested by the Respondent to this application that any tardiness has attended this application. Indeed, the evidence would suggest that, since the decision of The Hague Court of Appeal, the father and the Central Authority have moved with considerable expedition.
The matter was first listed on an urgent basis before me in the Judicial Duty List on Thursday 6 December 2007, having that day been transferred from the Federal Magistrates Court.
On that occasion, the mother’s solicitor, Mr Hodgson, sought an adjournment, based on the fact that he had received the documentation from the father/Central Authority only at about 5.00pm the previous evening. In the very short time available, he had only a very limited opportunity to obtain bare instructions from the mother who, of course, was residing in a time zone 10 hours behind Brisbane.
Mr Westbrook, Counsel for both the father and Central Authority, did not cavil with the extremely short notice nor did he suggest that the mother ought not have the opportunity to be heard. However, he submitted that it was essential that the Declaration, (and the reasons supporting that decision) be available in The Netherlands on Monday 10 December, so that they could be translated and filed in the further court of appeal in The Hague by Wednesday 12 December as required.
He submitted that the matter was urgent because there was the real possibility that substantive rights, relating to an International Convention that has, at its heart, the wrongful removal of children across international boundaries, were at stake.
In the event, I adjourned the application until 3.00pm the following day, Friday 7 December. During the intervening time, Mr Hodgson engaged Mr Byrne of Counsel, to appear on his client’s behalf. I had, the previous day, given Mr Hodgson leave to file a “hearsay affidavit” given the urgency of the matter and his understandable difficulty in obtaining instructions.
Ultimately, I was of the view that, consistent with the objects and purpose of the Convention and the importance of its subject matter, this Court should attempt to deal with the matter as urgently as possible.
On 7 December, each Counsel provided written submissions to the Court and argument was heard.
I undertook to provide these written reasons urgently, and undertook to consider the matter and provide those written reasons over the weekend so that they would be available for transmission to The Netherlands by Monday 10 December 2007.

BACKGROUND AND CHRONOLOGY

The mother in these proceedings departed Australia with the parties’ child, born in April 1999, on or about 12 April 2007.
Consent Orders were made in the Family Court of Australia at Brisbane on 2 June 2005. Under the heading “Children’s Orders”, those Orders provided:
“1.The child, [B], born […] April 1999, live with the mother.
…
3.The mother and father will share responsibility for decisions affecting the child’s long term care, welfare and development.
4.The child will have contact with the father at all such times the mother and father agree.
…
7.If at any stage the mother wishes to relocate with the child, including to a location outside of Australia (with it being specifically noted that the mother and child were both born in The Netherlands, and the mother may wish to return with the child to The Netherlands) then the father will unconditionally sign all documents and do all such acts and things to facilitate:
(a)The child’s obtaining a passport and travel/entry documents as may be required to facilitate the lawful movements of the mother and/or the child;
(b)The child’s exit from Australia and entry into The Netherlands (or such other country as the mother may from time to time require), together with her re-entry and exist (sic) on multiple occasions to and from whatever countries the mother and child may reside;
(c)The child’s continuing residence in such other country as the mother may direct from time to time.”
In addition, the orders provide relevantly, under the heading “Notations”:
“A.It is the intention of the parties that the child develop and maintain a good relationship with the father post-separation, including her having regular and predictable contact with the father (or such contact as may be reasonably possible having regard to the countries of residence of the child and her parents from time to time).
…
D.The parties record their expectation, but for the father’s working hours, and subject to the mother’s relocation, including to a different country, that they would otherwise expect the child to have contact with the father on a number of nights in any given period … [thereafter specifying specific periods].
…
F.The parties acknowledge that the frequency and duration of contact will necessarily change if the mother and child relocate outside of Australia. If she were to do so, the father acknowledges that his contact of necessity would occur during school holidays, or on such other occasions which would require him to travel to the child’s country of then residence.”
It is common ground that, subsequent to those consent orders being made, the mother and child visited The Netherlands for about 2 months and returned to Australia.
The father deposes to disputes subsequently arising as to the amount of time the child spent with him and, on 14 March 2007, he filed an Application that sought orders, relevantly, that:
“1.… the child [B], born … April 1999 (“the child”) live with the mother.
2.… the mother be responsible for all decisions affecting the child’s day to day care, welfare and development while she is living with the mother.
3.… the father be responsible for all decisions affecting the child’s day to day care, welfare and development while she is living with or spending time with the father.
4.… that the parties have joint parental responsibility for major long-term issues affecting the child, which includes the decision relating to the child’s education, religious and cultural upbringing, health and name.
5. … [specified orders for time spent with the father].”
Having specified a number of orders sought with respect to time and involvement in the child’s life, the father also sought an order, at paragraph 23 of the Application, that:
“The parties each be permitted to travel overseas with the child during any periods when the child is to live with or spend time with the parent under the terms of these orders, on the proviso that … [a number of specified conditions]… ”
A subsequent Amended Application, filed on 26 March 2007, sought that the consent orders earlier referred to be discharged in their entirety.
The parties attended a child dispute conference at the Federal Magistrate’s Court on 11 April 2007. The following day, the mother departed Australia with the child.
Five days later, the father instituted proceedings through the Commonwealth Central Authority for return of the child, pursuant to the Convention.
On 5 October 2007, a District Court judge in The Netherlands ordered the return of the child to Australia.
On 14 November 2007, The Hague Court of Appeal, annulled the decision of the District Court and dismissed the request by the Dutch Central Authority that the child be returned to Australia.

THE CONVENTION AND REGULATIONS

There is no doubt that the Family Court of Australia has jurisdiction generally to hear and determine questions arising under the Regulations.[1]
[1]See ss 31 & 39(5)(d) Family Law Act 1975 (Cth); In the Marriage of McCall, State Central Authority (1994) 121 FLR 45; McCall & McCall & State Central Authority & Attorney General (1995) FLC 92-551 at 81,507, (1994) 18 Fam LR 307.
The purpose of the Regulations is to enable the performance of the obligations of Australia under the Convention.
It is well established that the paramountcy of the best interests of the child does not apply in respect of applications pursuant to the Regulations.[2]
[2] See eg McCall above at 81,501-1.
Regulation 17 states:
“17(1) [Declaration re wrongful removal or retention] On application, a Court may, by order, declare that:
(a)The removal of a child from Australia to a convention country; or
(b)The retention of a child in a convention country;
was wrongful within the meaning of Article 3 of the Convention.”
The corresponding provision in the Convention, Article 15 provides:
“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the Authorities of the State of the habitual residence of the child, a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”
The Article speaks of a “contracting State” requesting the applicant to obtain a Declaration.
Here, the father and the Central Authority, make this application independently of any request from The Netherlands.
Mr Westbrook submits that Regulation 6(1) clearly gives the father and the Central Authority standing to make the instant application. Mr Byrne, takes no point with respect to standing.
Article 15 refers to the contracting State requesting “an applicant” to seek a Declaration. In terms, then, it contemplates an applicant making such an application. The Central Authority is obliged pursuant to the Regulations to provide wide-ranging assistance to the applicant.[3]
[3] See, eg Article 7.
In my judgment, each of the father and the Central Authority has standing to make the current application.
The Regulation refers to the retention being wrongful “within the meaning of Article 3 of the Convention”. Article 3 of the Convention provides:
“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;
(b)At the time of the 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 (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of any agreement having legal effect under the law of that State.”
There is no doubt that a Regulation 17 Declaration made by this Court does not bind a Netherlands Court.[4]
[4]See eg Resina v Resina (unreported, Family Court of Australia, Barblett ACJ, Fogarty and Anderson JJ, 22 May 1991), in particular per Fogarty J; and C v S [1990] 2 All ER 449 at 452.
Applications pursuant to Regulation 17, like other applications under the Regulations, are summary in nature. No determinations are made in respect of facts save those which are agreed or uncontentious or those which, for example, are on their face plainly ludicrous or improbable.
There is no doubt that this is intentional and is because
“… ordinary procedures can be used to undermine the objectives of any international treaty with important benefits for Australia, to frustrate the will of the parliament that Australia should enjoy and reciprocate those benefits and to defeat the application of valid Regulations which contemplate that Australian courts will deal with such cases quickly and accurately.”[5]
[5]Per Kirby J in De L v Director-General NSW Department of Community Services (1996) 187 CLR 640 at 690.
Equally, it has been recognised in respect of applications pursuant to the Regulations, that:
“A judge of the Family Court of Australia enjoys a wide discretion in the procedures to be adopted in cases of this kind. But not so large as would defeat the attainment of the objectives of the Convention and the Regulations.”[6]
[6] Ibid
In the determination of the current issue, as with all determinations pursuant to the Convention, the underlying objects and purpose of the Convention should be uppermost in the Court’s mind.

REQUIREMENTS OF REGULATION 17

Reference to Regulation 17 and, in turn, Article 3 make it clear that, in order for a Declaration to be granted, it is incumbent upon the father and Central Authority to first establish that, as at 12 April 2007:
(a)The child was “habitually resident” in Australia;
(b)The child’s removal from Australia breached “rights of custody” vested in the father under Australian Law;
(c)Alternatively to (b), the child’s removal from Australia breached rights of custody attributed to “an institution or any other body, either jointly or alone” under Australian Law;
(d)Any such rights of custody (irrespective of where vested) were exercised, or would have been so exercised, but for the removal or retention; and
(e) The removal from Australia was to a Convention country.
In respect of those elements, Mr Westbrook asserts that the child was habitually resident in Australia. Mr Byrne effectively concedes that. I am informed that the Dutch Court proceeded on that assumption. No evidence before me points to an obviously different conclusion.
There is no doubt that The Netherlands is a Convention country. Accordingly, the last of the required elements is also satisfied.
More difficult issues in this case arise with respect to the issue of “rights of custody”, which is an issue to which I shall shortly return. First, though, the mother raises a jurisdictional argument.

JURISDICTION ARGUMENT

Mr Byrne submits that this Court does not have jurisdiction to make the Declaration sought.

He argues that this issue has already been determined by a Court of competent jurisdiction in Holland. He argues that, in those circumstances, the judgment of the foreign Court is conclusive and if the foreign Court erred in law, that is a matter for further appeal in that jurisdiction, and to embark upon the current hearing would be to impeach the foreign judgment on its merits.
This is not an application in respect of the return of the child from a Convention country (which, in the case of a child removed to, or wrongfully retained in, Australia, would be heard in an Australian Court pursuant to Regulation 15).
It was an application for return that was heard and determined by the Dutch courts pursuant to the relevant Dutch law which incorporates The Hague Convention.
The instant application is an application for a Declaration in respect to a specific aspect of Australian law, namely, whether, for the purposes of Australian law, the removal of a child was wrongful within the meaning of Article 3 of the Convention.
If that Declaration is made, a Dutch Court – whether at first instance or on appeal – can make such use of it as that Court sees fit, including making no use of it at all.
The application before this Court in no way binds - or seeks to bind, or impinge upon - the proceedings in a Dutch Court.
In contrast to the Dutch proceedings, no issue is joined between the parties in these proceedings which affect the substantive rights with respect to the child.
The utility – or potential futility - of the Declaration might be relevant to any residual discretion in this Court to make the Regulation 17 Declaration. This is addressed subsequently.
Accordingly, I reject the mother’s argument as to issue estoppel and lack of jurisdiction.

RIGHTS OF CUSTODY

Regulation 4 of the Regulations defines “Rights of custody”:
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/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 sub-regulation (1), rights of custody include rights relating to the care of the person or 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.
Mr Westbrook submits that the terms of the Consent Order made on 2 June 2005, permit the father to share parental responsibility and the mother, pursuant to those orders had only a limited entitlement to take the child out of Australia.
Secondly, he argues, (in the alternative) that the father was an applicant to vary the terms of that existing order which such application, having been regularly filed, gives rise to rights of custody vested in the Court.

(a)Rights of Custody Generally

The majority in the Full Court in Wenceslas[7] held that:
“… We conclude that mere rights of access or contact are insufficient to constitute rights of custody, unless accompanied by the right to determine the place of residence of the child. In other words, the right to determine the place of residence of the child is not just sufficient, but necessary to establish “rights of custody” for the purposes of the Regulations.”
[7]Wenceslas v Director-General Department of Community Services [2007] FamCA 398 (per May & Thackray JJ; Finn J in dissent but not on the law on this point);
It has previously been held that the existence of an injunction granted by an Australian Court restraining the removal of a child from Australia conferred “rights of custody” in the injuncting party.[8] The rationale of that decision was:
“An injunction did confer rights of custody on the father, because although he did not have the right to determine the place of residence of the children within Australia, he had the right to ensure the child remained in Australia, or did not live outside Australia without his approval.”[9]
[8]Resina & Resina (unreported, Family Court of Australia, Barblett ACJ, Fogarty and Anderson JJ, 22 May 1991.)
[9]The rationale of the decision in Resina as espoused by the majority of the Full Court in Wenceslas above n 7 at [180].
It also now seems to have been authoritively determined – at least as far as principles which bind me – that:
“If it were to be established that [a party] or some other institution or body had a right to veto [a child’s] removal from [a country], then his removal from that country would prima facie have been in breach of “rights of custody” and hence wrongful within the meaning of the regulations.”[10]
[10] Above n 7 at [186].
Regulations embodying the Convention are permitted by reason of s 111(B) of The Family Act 1975 (Cth) (“the Act”).
Subsection (2) of the section notes the abandonment of the expression “custody” in Australian law as a result of The Family Law Reform Act 1995 (Cth).
Section 111(B)(3) of the Act provides:
“The purpose of Subsection (4) is to resolve doubts that implications of these changes effected by The Family Law Reform Act 1995 for the Convention. That is the only purpose of the Subsection.
Subsection (4) provides:
(4) For the purpose of the Convention:
(a)Each of the parents of a child should be regarded as having rights of custody in respect of the child, unless the parent has no parental responsibility for the child because of any order of a Court for the time being in force; and
(b)Subject to any order of a Court for the time being in force, a person:
(i)With whom a child is to live under a parenting order; or
(ii)Who has parental responsibility for a child under a parenting order;
should be regarding as having rights of custody in respect of the child; and
(c)Subject to any order of a Court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day to day or long term care, welfare and development of the child should be regarded as having rights of custody in respect of the child;
(d)Subject to any order of a Court for the time being in force, a person:
(i)with whom a child is to spend time under a parenting order; or
(ii)with whom a child is to communicate;
should be regarded as having a right of access to the child.
The amendments to Section 111B were designed to avoid arguments in and about the meaning of “rights of custody” which might otherwise have arisen because of changes to the nomenclature of parenting orders made as a result of amendments to the Act.
Section 61B of the Act now provides that:
“Parental responsibility in relation to a child, means all the duties, power, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C provides:
“1.Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1. This section states the legal position that prevails in relation to parental responsibility to the extent that it is not displaced by a parenting order made by the Court. (See Subsection (3) of this section and Subsection 61D(2) for the effect of a parenting order.)
Note 2. …
Note 3. …
2.Subsection 1 has effect, despite any changes in the nature of the relationships of the child’s parents. It is not effected, for example, by the parents becoming separated, or by either of them marrying or remarrying.
3.Subsection 1 has effect, subject to any order of the Court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this Section).”
The orders made by consent between the parties are, then, crucial in determining whether the father has rights of custody in the relevant sense, because, plainly, the right of a parent to determine the place of residence of a child is an incident of parental responsibility as defined in the Act.

(b) The Effect of the Consent Order

The first question, then, is whether the consent order made between the parties gives the mother - as distinct from the parties jointly or the father - the right to determine the place of residence of the child with the result that the father did not have “rights of custody” with respect of the child as at 12 April, 2007.
Although the Consent Orders expressly share responsibility for decisions affecting the child’s long-term care, welfare and development[11], it seems to me that, by the terms of paragraph 7 of the orders, the father ceded to the mother the sole right to determine the place of residence of the child.
[11]Para 3 of the Consent Orders
In other words, whatever “duties, power, responsibilities and authority” were conferred on the father generally by paragraph 3 of the Orders, they did not include the right to decide the place where the child resides.
In arriving at that conclusion, I note in particular:
·The use of the word “unconditionally” in the phrase “the father will unconditionally sign all documents and do all such acts and things to facilitate…[any journey overseas or any relocation]”;
·The express agreement to do all acts and things necessary to facilitate “the child’s continuing residence in such other country as the mother may direct from time to time” [my emphasis];
·The broad and general nature of the agreement by the father, including doing all acts and things necessary to facilitate movement of the child for “exit from Australia and entry into The Netherlands (or such other countries the mother may from time to time require)”;
·The use in that last context of the word “require”, as opposed to, for example, “request”.
The broad general powers given to the mother by the operative provisions of the Orders are underlined by Notations to the Orders which, again, are redolent of the mother having sole determinative rights. Examples are:
·The express contemplation of “the mother’s relocation including to a different country” [Notation D].
·The lack of control retained by the father in respect of contact to the child in the event that the mother relocates and the fact that contact arrangements noted in the order are all subject to the mother’s decisions about where and when she will live. [Notations D, F and G];
·The specific contemplation of a necessary change to the father’s contact arrangements “if the mother and child relocate outside Australia”. [Notation F].
In my judgment, not only has the father, by those orders, ceded the right to the mother to determine the child’s place of residence, it is also clear that he did not retain for himself a “right to veto” the child’s removal from Australia, as that expression is used and understood in the decisions of the Full Court to which I have earlier referred.
Assuming, as is asserted, that the father was exercising, pursuant to the consent arrangements, “rights of access” prior to the mother’s departure overseas, the exercise of those rights are, according to the law in Australia, not sufficient to amount to “rights of custody” within the meaning of the Regulations.
Accordingly, I find that the mother’s removal of the child from Australia, on 12 April 2007, was not in breach of the father’s rights of custody.

(c) Rights of Custody in the Court?

The next question which arises is: did the filing of the Application by the father to discharge the consent orders and make other orders (the net effect of which would have been, if successful, the removal of the mother’s right to determine the place of residence of the child) give the Federal Magistrates Court “rights of custody” as at 12 April 2007?
Mr Westbrook argues that it did. As a matter of law, there is support for his argument.
The most frequently cited genesis for the proposition that rights of custody may vest in a court appears to be a decision in the English Court of appeal in C v C[12]. There, Lord Donaldson MR held[13]:
“… the right to determine the child’s place of residence … may be in the court, the mother, the father, some care-taking institution, such as a local authority, or it may, as in this case, be a divided right, insofar as the child is to reside in Australia, the right being that of the mother, but insofar as any question arises as to the child residing outside Australia, it being a joint right, subject always, of course, to the over-riding rights of the court. If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal would be wrongful within the meaning of the convention. I add for completeness that a “right to determine the child’s place of residence” (using the phrase in the Convention) may be specific, the right to decide whether she will live at a particular address, or it may be general, eg “within the Commonwealth of Australia”.”
[12] [1989] 2 All ER 465
[13] Ibid at 473.
In Secretary Attorney General’s Department v TS[14], Chief Justice Nicholson held [15]:
“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 is minded to remove a child from the jurisdiction could successfully do it at a time when he or she was aware than an application was pending in the court seeking to restrain such removal.
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.”
[14] (2000) 27 Fam LR 376
[15] Ibid at 389
The then Chief Justice’s view and the principle espoused in C v C (and the English decisions which followed it) was held to represent the law in Australia in the subsequent decision of the Full Court in Brooke v Director-General, Department of Community Services (NSW)[16]
[16] (2002) 29 Fam LR 121
Recently, the majority in the Full Court in Wenceslas held[17]:
“The authorities we have discussed above (and see also Brooke v Director General, Department of Community Services (NSW) (2002) 29FamLR 121; (2002) FLC 93-109; [2002] FamCA258) have made clear that a court can have “rights of custody” for the purposes of the Regulations. This may arise where, for example, the courts of the country in which the child was habitually resident, have the power to veto the child’s removal. In this regard it is worth repeating the remarks already cited from the judgment of Lord Donaldson MR in C v C at ([8]):
‘[8] If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the Convention [emphasis added by the Full Court].”
[17] Above n 7 Per May & Thackray JJ at [223]
The law in Australia, then, appears to be settled: a court can have “rights of custody” as relevantly defined.
I find, then, that the Federal Magistrates Court was capable of having “rights of custody” with respect to the child as at 12 April 2007.

(d) Did the Federal Magistrates Court in fact have Rights of Custody?

The father’s Amended Application sought a specific order that the mother be restrained from taking the child outside of Australia, save on specified terms.
Those terms provided that each of the parties be permitted to travel overseas on various conditions but, in broad summary, were not permissive of permanent relocation of the child to an overseas destination by either party.
A summary of the chronology of proceedings leading up to the departure of the mother and child on 12 April 2007 (which for current purposes is uncontentious) is as follows::
02/06/2005 Consent Orders made
14/03/2007Father files Application for Inter Alia “contact” orders. Seeks orders with respect to “access” and specified orders in respect of overseas travel.
26/03/2007Father files Amended Application. Seeks discharge of earlier consent orders in their entirety.
11/04/2007Parties attend Child Dispute Conference, in essence a conciliation conference designed to reach agreement in respect of the matters in dispute.
12/04/2007Mother leaves Australia for The Netherlands (this date is assumed by each party).
13/04/2007Mother telephones father to advise that she and the child are in The Netherlands and intend to reside there permanently.
17/04/2007Father applies to Central Authority to pursue Convention Application for return.
The basis of a Court’s “rights of custody” is, in my view, the capacity vested in a Court, once a relevant, lawful and regular application is made, to make orders determining the place of residence of a child (or precluding one party from making that decision without agreement of the other).
The Full Court in Brooke, for example, said:
“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.”[18]
[18] Above n 16 at [24]
The Full Court in Wenceslas appears to suggest that the failure to obtain leave of a New Zealand court pursuant to New Zealand legislation in terms similar to Australia’s s 65Z(1), would, of itself, give rise to “rights of custody” in a New Zealand court of competent jurisdiction[19].
[19]In that case no question of consent (as referred to in the Australian s 65Z(2)(a)) arose.
In the line of English authority relied upon in Secretary, Attorney General’s Department v TS, the criteria for a Court having rights of custody appears to be the “right to decide” the place where a child shall live, as distinct from the decision itself.[20]
[20]See C v C referred to above n 12, and also Thorpe LJ in re H (child abduction: rights of custody) [2000] 1 FLR 2002 and Hale J (as the Baroness then was) in re W; re B (child abduction: unmarried father) [1998] 2 FLR 146 where Hale J spoke of a court being “actively seized of proceedings to determine rights of custody” and the proceedings “remaining pending”.
Moreover, the former Chief Justice at least, suggests that the notion of Courts having “rights of custody” should be a notion of broad compass and “it may be that they should extend to any proceedings for an order relating to a child …”.[21]
[21] See TS, above n 14.
By reason of those principles, I reject the submissions of Mr Byrne on behalf of the mother, that, because Spelleken FM had adjourned those proceedings (on 2 May, 2007) until such time as it was ascertained whether the child would be removed to Australia or remain in Holland pursuant to the Convention proceedings then mooted in The Netherlands, the court did not have rights of custody.
It is the fact that the Federal Magistrates Court of Australia was seized of the application that gives rise to the “rights of custody” in that Court. Those rights continue to exist irrespective of the fact that the proceedings have not been determined.
Article 3 requires rights of custody to have been “actually exercised” or requires that they “would have been exercised but for the removal”.
The chronology alone in my view makes it clear that the court was exercising rights of custody at the time of the child’s removal.
It seems clear to me that in adjourning proceedings whilst Convention proceedings were being determined in The Hague, the court was simply flagging that rights of custody could not be exercised while those proceedings were in train.

Mr Byrne also argues that the father would have confronted significant difficulties in convincing a Court that, consistent with the best interests of the child, the consent orders made two year’s previously, ought to be changed.
That may be true, but, in my judgment, that consideration is irrelevant to the question under consideration unless it could be established by the mother in these proceedings that the father’s application of which the Court was seized, was frivolous, vexatious or otherwise, on its face, clearly doomed to fail. The mother clearly cannot make that out.
The Federal Magistrates Court’s rights of custody also exist, in my view, irrespective of the consent Order which governed the positions of the parties at the time of the mother’s departure.

SECTION 65Z CONSIDERATIONS

Section 65Z of the Act provides relevantly:
Obligations if proceedings for the making of certain parenting orders are pending.
(1)If proceedings (the Part VII proceedings) for the making of a parenting order … are pending, a person who is a party to the proceedings … must not take or send the child concerned from Australia to a place outside Australia, except as mentioned in Subsection (2).
Penalty: imprisonment for three years.
…
(2)Subsection (1) does not prohibit taking or sending the child from Australia or a place outside Australia if:
(a)It is done with the consent in writing (authenticated as prescribed) of each other party to the Part VII proceedings; or
(b)It is done in accordance with an order of a Court made under this part … after the institute of the Part VII proceedings.
Mr Byrne argues on behalf of the mother that, if the removal of the child by her breached either the father’s or the court’s rights of custody, it was nevertheless not “wrongful” within the meaning of Article 3.
He argues that s 65Z(2)(a) applies so as to allow it to be said by the mother that her removal of the child was not in breach of rights “under the law of the State in which the child was habitually resident”, namely Australia. It was not in breach, he argues, because the section permitted the mother to remove the child.
The argument depends in part on a reading of the consent orders with which, as is clear from the earlier parts of these Reasons, I agree. Mr Byrne asserts those Orders clearly and unambiguously permit the mother to unilaterally decide when and to where she will relocate, including permanently, and to that set of circumstances the father consented in authenticated writing as the section requires.
No argument was addressed to me from either counsel as to whether the consent orders are, indeed, “authenticated writing” within the meaning of the section. I will proceed on the assumption that they are. Ultimately, as will transpire, nothing ultimately turns on the point.
Mr Westbrook argues on behalf of the father and Central Authority[22]:
“The section makes it unlawful for a person to remove a child from the jurisdiction whilst proceedings are pending, except as provided by subsection 65Z(2). None of these exceptions can rightly be said to have arisen in the present circumstances. It would be a remarkable outcome if the mother could defeat the father’s regularly commenced proceedings by removing the child from the jurisdiction when her doing so constituted a breach of a specific legislative injunction against her doing so.”
[22] Para 51 written submission on behalf of the Father and Central Authority.
It is possible to argue (assuming the consent orders constitute “authenticated writing” within the meaning of s 65Z(2)(a)) that the consent contained in them falls within that paragraph as it is not limited in time in the same way that sub-paragraph (b) of that section is.
However, these are not proceedings with respect to s 65Z; they are proceedings with respect to the Regulations in pursuit of the Convention. In these proceedings:
“… the High Court has indicated that the task that an Australian court faces when dealing with an application brought under the [Regulations], is to apply the Regulations to the facts established by the evidence. As Gaudron, Gummow and Hayne JJ said …
‘It is the Regulations that govern the disposition of these matters, not the Convention.’”[23]
[23]Brooke & Director General Department of Community Services (2002) 29 Fam LR 121, Full Court, at [22] citing the decisions of the High Court in DL v Direction General, NSW Department of Community Services (1996) 187 CLR 640 and more recently DP v Central Authority, JLM v NSW Department of Community Services (2001) 180 ALR 402; FLC 93-081. (Citations omitted from the quotation above.)
Whilst not exercisable against either of the parties in Part VII proceedings under the Act, the Federal Magistrates Court had, for the purposes of the Regulations, “rights of custody” vested in it.
If the previous consent of the father to the mother’s removal of the child meant that the removal of the child was not in breach of the father’s rights of custody,[24] it seems to me that no such exculpation can apply to the Court’s rights of custody which I have found to exist as at 12 April 2007.

[24] About which I pass no judgment

SUMMARY OF FINDINGS: RIGHTS OF CUSTODY AND WRONGFUL REMOVAL

I am satisfied that:
·    The child was habitually resident in Australia as at 12 April 2007;
·    As at that date, by reason of the terms of consent orders made on 2 June 2005, the father did not have “rights of custody” under the law of Australia;
·    As at that date, under the law of Australia, “an institution or any other body”, namely the Federal Magistrates Court of Australia, did have “rights of custody” in respect of the child;
·    Those rights of custody arise by operation of law;
·    Those rights of custody were being exercised by that court or would have been but for the removal of the child;
·    The removal was to a Convention country, namely The Netherlands;
·    Section 65Z(2)(a) does not apply so as to authorise the removal contrary to the court’s rights of custody;
The removal of the child as at the relevant date was, in my judgment, wrongful within the meaning of Article 3.
Accordingly, in my judgment, the preconditions for the relief provided for in Regulation 17 are met.

DISCRETION

Mr Westbrook submits that once the preconditions for Regulation 17 are made out, a Declaration should, as it were, automatically follow. Put another way, he submits that there is no “residual discretion” in this Court about the grant of that relief.
He submits that “the question of whether a removal is wrongful is not a matter of degree” and further “that is, there is no scope for a determination that the removal is a little bit wrongful.”[25]
[25] Written submissions, applicant father/Central Authority, paras 48 and footnote 23.
In further support of that argument, Mr Westbrook submits that it should always be borne in mind by this Court that, despite the technicalities involved in the consideration of applications pursuant to the Regulations, their underlying purpose is to have a child returned to his or her habitual residence so as to enable the Courts of that habitual residence to determine parenting issues between the parties.[26]
[26] Mr Westbrook cites Zafiropoulous v Central State Authority [2006] FLC 93-264 at 80,497, [37],
“It needs to be remembered that the purpose of the return of the Regulations is to enable the Courts of habitual residence to determine the parenting issues that have arisen in the case. It would by no means follow that the children would be required to permanently reside in Greece, nor would it by any means follow that the Greek Courts would require the children to be placed in circumstances that the Greek Courts found placed the children at physical or emotional risk.”
Mr Byrne submits[27] that, firstly, the applicant is, in effect, “forum shopping”, “since he seeks a Declaration that will effectively overturn the assessment and order previously made by The Hague Court of Appeal”.
[27]Albeit that it is expressed as being with reference to the question of whether the Family Court of Australia should “exercise jurisdiction” – see para 3, written submissions on behalf of the respondent mother.
For reasons given above, in my judgment, this misconceives the nature of the instant application. I reiterate: The Hague Court is free to do what it wishes with a Declaration made by this Court and the Declaration does not affect substantive rights.
I indicated to Counsel during the course of argument that I was troubled by the fact that a Declaration was being sought at what, on the evidence, appears to be a second appellate level, in circumstances where a Declaration by this court was not available either at the Court of first instance[28], or The Hague Court of Appeal.[29]
[28] Middelburg District Court – see Exhibit “K” to affidavit of Mr Brown filed 5 December 2007
[29] See Exhibit “L” to affidavit of Mr Brown filed 5 December 2007.
Neither Counsel was able to assist in advising what provisions of Dutch law might govern the receipt of a Regulation 17 Declaration if made.
The evidence before me only goes so far as to say that any Appeal must be lodged by Wednesday 12 December 2007, that there are no extensions of time permitted by the Court and that “any further relevant decision by any Australian Court must be submitted … by Monday 10 December 2007.”[30]
[30] See para 30 affidavit Mr Brown filed 5 December 2007.
In that context, Mr Byrne, in written submissions on behalf of the mother contends that:
“The Court should not engage in an exercise in futility and make orders which will have no bearing on the extra-territorial Courts decision on a further Appeal. The evidence from the respondent’s lawyers in The Netherlands would appear to be that this Declaration would not be admissible in the further Appeal proposed to be made by the applicant in The Netherlands.”
Exhibit “B” to the affidavit of Mr Hodgson is an email from the mother’s Dutch lawyer who represented her at the initial hearing and before The Hague Court of Appeal. He says:
“It is impossible to provide the High Court new information, such as letters and Declarations. The High Court can only investigate if the explanation of The Hague Convention of 1980 by the Court is correct, no more nor less. The High Court will not handle the case … completely again. So new material can not be used in this procedure. The reason is that the earlier Court did not make a decision on the basis of this new material.”
He goes on to say:
“My opinion is that such a Declaration is worthless. Such a Declaration cannot be used by the High Court. It is quite simple, there will be no complete new procedure. It is a written, only by letter, procedure. [Mr Brown] and [Ms Burke] cannot appear in Court, only the specialised lawyers can handle this procedure. It is just a procedure by letter.
Article 15 of the Child Abduction Convention says that the Court can ask for an Article 15 Declaration. There is no request of the Dutch Court for such a Declaration. For this reason the Court in Australia must reject the request of [the father].”
It seems to me that the submissions made by Mr Westbrook fall foul of the express provisions of Regulation 17. If his submissions were correct, it seems the Regulation should provide that, upon satisfaction of the relevant preconditions, a Declaration must issue. The Regulation says precisely the opposite:
“On application, a Court may by order declare that ..” [my emphasis].
The Regulations are, though, silent as to the matters which the Court ought take into account in the exercise of the discretion inherent in that Regulation.
There seems to me little doubt, that any “residual discretion” pursuant to the Convention, must have as a primary – if not the primary – focus the purpose and intent of the Convention.[31] Included among the specific objects of the Convention[32], is
“(B) To ensure that rights of custody and access under the law of one contracting State are effectively respected in the other contracting State.”
[31]See eg DL v Director General, NSW Department of Community Services, above n 5, particularly per Kirby J. State Central Authority v Awob (1997) FLC 92-746; Director General, Department of Family, Families Youth and Community Care v Thorpe (1997) FLC 92-785; Regino v Regino (1995) FLC92-587.
[32]Article 1.
In G v C[33] her Honour Justice May, said in respect of an application for Declaration pursuant to Regulation 17:
“It seems to me that this Regulation is designed for this situation, where a child has been removed from Australia and it is thought appropriate by the Australian Courts to make such Declaration and I intend to do so in the circumstances.” [my emphasis]
[33] (unreported, Family Court of Australia, May J, 31 October 1997).
I note in that respect, the roles of the respective Central Authorities in both Australia and The Netherlands. They have a central role to play in assisting “non-removing parties” and ensuring that the central purposes and intentions of the Convention are carried out.[34]
[34] See in particular Article 7 of the Convention.
The relevant Central Authority in Australia joins with the father in seeking the Declaration in further pursuance of those purposes and objects. This, it seems to me, is a relevant consideration of the exercise of the discretion.
I regard the wrongful removal and/or retention (as found by me) in the context of the primary intention and purposes of the Convention and the Regulations, and the support of same by the relevant Central Authorities, to be powerful factors relevant to the exercise of the discretion which I find is vested in this Court pursuant to Regulation 17.
In addition, Mr Westbrook submits that plain errors (insofar as Australian law is concerned) appear on the face of the “Reasons for Judgment” of The Hague Court of Appeal earlier referred to. I am not prepared, on the evidence before me, to make any comment with respect to the decision of the Dutch Court and in my view, it would be disrespectful of me to do so.
I accept Mr Byrne’s submission that the futility of an order ought to be a consideration relevant to the exercise of a discretion to make an order. However, whilst noting the email from the mother’s Dutch lawyer, and meaning no disrespect, I am mindful of the fact that a Regulation 17 Declaration is, in any event, not binding on the Dutch Court and would, in any event, be something which the Dutch Court may or may not take into account in accordance with its substantive and procedural laws.
On balance then, I propose to exercise my discretion to make the Regulation 17 Declaration.
I order accordingly.
I will direct that any application for costs be made pursuant to a written application and supported and opposed with written submissions. I will also, subject to either party wishing to be heard on the issue, direct that any such application be determined in chambers.
I foreshadow that any such application may need to await the outcome of the Appeal proceedings in The Netherlands as that result (and any additional evidence in respect of the futility, or lack of futility, of the Declaration) may, inter alia, be relevant considerations. I will enlarge any time necessary to allow that to occur.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 10 December 2007

[2007] FamCA 1421

10 December 2007

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