COMMISSIONER OF POLICE and ZOTKIEWICZ
[2014] FCWA 5
•29 JANUARY 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986
LOCATION: PERTH
CITATION: COMMISSIONER OF POLICE and ZOTKIEWICZ [2014] FCWA 5
CORAM: WALTERS J
HEARD: 24 DECEMBER 2013
DELIVERED : 29 JANUARY 2014
FILE NO/S: PTW 1930 of 2010
BETWEEN: KARL JOSEPH O'CALLAGHAN, COMMISSIONER OF POLICE
Applicant
AND
ZOTKIEWICZ
Respondent
Catchwords:
FAMILY LAW – INTERNATIONAL CHILD ABDUCTION – Hague Convention – application by State Central Authority under Part 4 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for orders for access between an overseas parent (resident in Poland) and a child habitually resident in Australia – where in 2011 the Full Court allowed an appeal from a decision of a Family Court judge ordering that the child be returned to Poland in the company of the father – where the Full Court held that the trial judge erred in concluding that the child was habitually resident in Poland – where the child has continued to live with the mother in Australia – where the child is now clearly habitually resident in Australia – where the State Central Authority now declines to pursue the application under the Regulations for access orders – where the State Central Authority has withdrawn from the proceedings – whether the father can or should be permitted to conduct the proceedings under the Regulations in his own right – whether the proceedings under the Regulations should be stayed or dismissed – where the mother commenced proceedings in the Family Court in 2010 under Part VII of the Family Law Act 1975 (Cth) seeking parenting orders – where the Family Court made interim parenting orders in April 2010 providing for the child to live with the mother and the father to spend time with the child as agreed between the parties – where the father has declined to participate in the Part VII proceedings – where a Polish court made ex parte orders in August 2010 giving the father sole "parental authority" over the child – where the Polish orders were made after the Family Court made interim parenting orders in April 2010 – where the Full Court was aware of the Polish orders when it discharged the trial judge's orders requiring the return of the child to Poland – where the father does not accept the decision of the Full Court discharging the trial judge's orders requiring the return of the child to Poland – where the father relies upon the Polish orders as comprising final parenting orders made in his favour – where the father has presented no proposal as to how the Polish orders might be reconciled with the Family Court orders made in April 2010 – whether the father should be required to participate in the Part VII proceedings in the event of the application for access under the Regulations being dismissed – held that the father lacks standing to pursue the application for access under the Regulations in his own right – held that the application for access under the Regulations should be dismissed and the father should participate in the Part VII proceedings in the Family Court– held that the father can raise questions regarding the appropriate forum for the conduct of parenting proceedings relating to the child in the context of the Part VII proceedings in the Family Court
Legislation:
Family Law Act 1975 (Cth), s 60CC, s 11B
Family Law (Child Abduction Convention) Regulations 1986, reg 1A, reg 6, reg 14, reg 25, reg 25A
Family Law Amendment Regulations 2004 (No. 3) 2004 No. 371
1980 Hague Convention on the Civil Aspects of International Child Abduction
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms C Thatcher
Respondent: Mr L Mather
Solicitors:
Applicant: State Solicitor's Office
Respondent: Legal Aid WA
Case(s) referred to in judgment(s):
Director-General, Department of Family and Community Services v Brooks [2012] FamCA 179
EJK & TSL (2006) FLC 93-287
Lewis Blyth & Hooper v Dennis [2007] WASC 177
Pascarl & Oxley [2013] FamCAFC 47
Plenty v Gladwin (1986) 60 ALJR 665
Secretary, Attorney-General's Department v McDonald (2013) 48 Fam LR 593
State Central Authority
Commissioner of Police, South Australia & Philbrook [2013] FamCA 364
State Central Authority v Peddar [2008] FamCA 519
State Central Authority v Quang (2009) 42 Fam LR 288
Underwood, Son & Piper v Lewis [1894] 2 QB 306
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472
ZP v PS (1994) 181 CLR 639
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Preamble
1At the heart of these proceedings is a long running dispute between the parents of a nine-year-old boy. The boy lives in Perth, Western Australia with his mother. The boy's father lives in Poland. The mother and the father disagree about many things, including arrangements for contact between father and son. Of most relevance to the present proceedings, however, is their disagreement about the role this Court should play in resolving the parenting dispute in which they are embroiled. The mother wants the dispute to be managed and resolved by this Court in the exercise of its jurisdiction under the Family Law Act 1975 (Cth) – and relevantly, under Part VII of that Act. In broad terms, the father wants the dispute to be dealt with by this Court as an application for access to a child pursuant to Regulations made for the purpose of giving effect to the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"). The father does not wish to submit to what he describes as the "domestic law" of Australia as it relates to family law.
2The father's determination not to submit to Australian domestic law in relation to his dispute with the mother over contact with his son has been counter-productive, in that it has complicated the dispute and delayed it. Ultimately, and because of the conclusions I have reached regarding the manner in which the proceedings should be conducted and the law that is to be applied to them, there is every possibility that the father will refuse to participate in the proceedings at all. That is a matter for him.
Background
3In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parents as the father and the mother (and I mean them no disrespect by doing so) – because it is less confusing than referring to them in other terms; and
c)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road, Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate "in tandem" and exercise similar jurisdiction).
4Although Australian law now refers to a child “spending time” with a person with whom the child does not live, I shall use the obsolete terms "access" or “contact” from time to time in these Reasons. I have elected to use the superseded terms because it is both more convenient and less grammatically challenging to do so. The terms "access" and "contact" also sit more comfortably with the terms of the Convention.
5The father was born in Poland and is aged approximately 54 years. The mother was born in Belarus and is aged approximately 39 years. The father acquired Australian citizenship in 1983. The parties began living together in Poland in or about 1999 and married in that country on 1 March 2000.
6[N Zotkiewicz] was born in Poland [in] 2004. He was later registered as an Australian Citizen by descent. The mother, the father and [N] continued to live in Poland until 6 December 2006. They then moved to Perth.
7The mother was granted Australian citizenship in September 2009.
8The mother and the father remained living in Perth with N until 24 October 2009, when they left Australia and travelled to Poland.
9On 14 December 2009, and unbeknown to the father, the mother contacted the Australian Embassy in Warsaw seeking an emergency passport.
10On 26 February 2010 the father filed for divorce in Poland. He may have sought other relief as well, but I am unaware of the precise orders applied for at that time. I shall refer to these proceedings as "the Polish proceedings".
11On or about 31 March 2010 the mother left Poland with N, without the father's knowledge or consent. She brought N back to Australia, utilising the emergency passport. The father had retained N's primary passport.
12On 13 April 2010 the mother commenced proceedings in the Family Court of Western Australia under Part VII of the Family Law Act 1975 Cth (""FLA"). On 21 April 2010, orders were made to the following effect on an ex parte basis:
1.Until further order, N live with the mother.
2.Until further order, the father be restrained by injunction from removing N from the Commonwealth of Australia.
3.The Australian Federal Police be requested to place N's name on the Airport Watch List.
4.Until further order, the father spend time with N as agreed between the parties.
13I shall refer to the above orders as "the April 2010 orders", and to the proceedings commenced by the mother as "the WA parenting proceedings".
14On 18 June 2010, the father made a Request for Return under the Convention to the Australian Central Authority. On 9 July 2010, the Commissioner of Police as the State Central Authority ("the SCA") filed an application in this Court under Regulation 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"), seeking N's return to Poland.
15On 2 August 2010, orders were made by the Circuit Court in Plock, Poland in the Polish proceedings ("the Polish orders"). The Polish orders contain a divorce order, dissolving the parties' marriage "by the fault of the wife". The Polish orders also provide:
a)that the father be entrusted with "the execution of parental authority over [N], establishing the place of residence of [N]" with the father;
b)that the mother be "deprived of the parental authority over [N]";
c)that the "costs of maintenance" of N be charged solely to the father; and
d)that the Court "does not decide on contacts of [the mother] with [N]".
16On 4 February 2011, Crooks J ordered that N be returned to Poland. The mother then appealed. The Full Court allowed the appeal on 8 July 2011. In doing so, it held that the SCA had failed to discharge the burden of proving, on the balance of probabilities, that N was habitually resident in Poland. Because habitual residence in Poland had not been proved, the SCA's application for a return order failed and the orders made by Crooks J were set aside.
17The citation for Crooks J's judgment is Commissioner of Police & Zoltowski [2011] FCWA 5 ("the first instance judgment"). The Full Court's judgment has been reported as Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 ("the appeal judgment").
18Both Crooks J at first instance and the Full Court on appeal were aware of the existence of the Polish proceedings and the Polish orders: see, for example, the first instance judgment at [19] and the appeal judgment at [4].
19N has lived with the mother in Australia since 31 March 2010.
20On 4 July 2013, the SCA filed a Form 4 application initiating proceedings for access, pursuant to regulation 25 of the Regulations ("the Convention access application"). The orders sought in the Convention access application are as follows:
1.The father have contact with N at all such times as agreed to in writing but, failing agreement, as follows –
a)for N to spend unsupervised contact with the father in Poland being
i) every second Christmas, starting 2013, for the duration of the school holidays; and
ii) during N's holidays in July/August, starting 2014, rotating every second year.
iii) The father to bear the costs of this contact.
b)For the mother to arrange for N to have:
i) his own mobile phone for communication with the father and to inform the father of N's mobile number;
ii) access to his own email and Skype accounts for communication with the father each second Sunday and on every second day during his school holidays.
iii) During the above contacts, the mother is not to interfere with N's contact with the father. The cost of N's mobile phone bill is to be borne by the father.
2.The mother and father advise the other of their residential address and telephone number and neither party change their residential address or telephone number without giving the other party 28 days' notice.
3.The mother and father keep each other informed of any serious accident or illness suffered by the child at any time.
4.The mother authorise any educational institution attended by N to forward directly to the father, and without limiting the generality, school reports, newsletters and other information which the father may reasonably require at the father's expense.
5.The father be entitled to attend parent/teacher interviews, school functions and other activities involving N.
6.The mother and father authorise any health professional whom we may consult to provide to the other any reasonable request for information but at the Requesting party's expense.
21The following documents were attached to the Convention access application:
a)a document entitled "Request for Exercise of Rights of Access and Accommodation" signed by the father, but undated;
b)an authorisation by the father that the SCA act on his behalf (the authorisation is dated 27 June 2013);
c)a copy of the Polish orders;
d)a document headed "Background Assessment Report" dated 22 November 2011 and prepared, in Poland, by Professional Curator Anna Majewska; and
e)a statement of Marcin Przybylski (a lawyer in Plock, Poland) dated 21 September 2011.
22Although the approach taken to the issue of "habitual residence" is inconsistent in the Convention access application and the documents filed with it, it is clear that the father acknowledges that N lives in Australia and seeks orders for access or contact only. The father confirmed in a letter dated 23 December 2013 to the Principal Registrar of this Court that the Convention access application "is strictly about access and contact".
23The Convention access application at [6] describes the following as "the circumstances in which rights of access have been breached or enjoyment of access denied":
•On 20 November 2011 the mother had confiscated [N's] own mobile telephone, through which he was able to contact the Father and vice versa. The mother, in reply to the Father's protests, refused further contact between the Father and [N] to be possible without giving a reason for her breach of the rights of access. The Mother, on that day and upon the Father's verbal (recorded) request to let [N] see the Father and his family in Poland refuse the possibility of [N] to visit the Father and [N’s] Extensive family in Poland during his school holidays.
•5 January 2012, the Mother had stated to the Father in [an] SMS message, that she for bids the Father to any contact rights with N indefinitely. Since then, the situation of lack of direct contacts remains, except on one occasion three days before N's eighth birthday. On that day N rang the father and said that he begged the mother to let him talk to the father reasoning with her, that it is his birthday and that [the father is] his only family. The mother had also permanently denied N's access to his adult half sister who lives in Perth.
24The Convention access application is supported by an affidavit sworn by the father on 10 July 2013 ("the father's first affidavit"). In the father's first affidavit, he deposed to the following (among other things):
a)The father married [Ms S] on 12 May 2012 in Plock, Poland. At the date of the marriage, the father was 52 and Ms S was 32.
b)The father and his wife have a daughter, [M], who was born [in] 2011.
c)The father, his wife and daughter live in a residential property in P, Poland.
d)The mother made contact with the father in mid-2013 regarding dental work which N required. The dental work was significant, and the father paid for it. The cost was over $4400.
e)Shortly afterwards, the father transferred $800 to the mother's account to assist with various expenses for herself and N.
25Taking into account the "Background Assessment Report" prepared by Ms Majewska, it appears that the father has been married four times:
a)His first marriage was from 1984 to 1994. The father and his first wife have one child: a daughter, [J], who was born [in] 1989. J lives with her mother in Australia and is on good terms with the father.
b)His second marriage was from 1996 to 1999. There are no children from this marriage.
c)His third marriage was to the mother. N is the only child of the marriage.
d)His fourth marriage is his current marriage to Ms S. There is one child of this marriage: M , as indicated above.
26In the father's first affidavit at [8] and [9], he refers to two scenarios: the first commencing "If a judge will order for [N] to spend unsupervised contacts with [the father] in Poland ..." and the second commencing "If a judge will wish to make an order for N's 'place of residence' to be with his father in Poland, for which I have been asking for, and which was originally ordered by a Polish Circuit Court at the divorce proceeding in 2010 ..." It is clear from the Convention access application itself, however, that the father is not seeking orders for N to live with him in Poland. Perhaps more accurately, he is not seeking orders for N to live with him in Poland in the Convention access application.
27The father's first affidavit is silent as to his proposed arrangements for access in the event of the Convention access application being granted, save for the following comment at [8]:
If a judge will order for [N] to spend unsupervised contacts with [his] father in Poland, in all fairness to [N]'s best interests of a child, I guarantee my son living in a house which he knows since birth. He has a continuous current health insurance active in Poland. [N] will share a family warmth and safe atmosphere with his youngest step-sister [M] during a whole stay, and he will be able to contact his mother.
28The mother filed a notice of address for service in relation to the Convention access application on 15 August 2013.
29The father swore a second affidavit in support of the Convention access application on 6 September 2013 ("the father's second affidavit"). The father's second affidavit was filed on 25 September 2013.
30In the father's second affidavit, more detail is provided regarding the father's living arrangements in Poland. The father also raises what he describes as "concerns for N’s emotional well-being if mother will keep isolating a child from his father, his sisters and from the rest of his biological family" and "concerns for N's degrading emotional and intellectual (school) development under shadowed by his isolation from Dad by a mother". Annexed to the father's second affidavit is the book Raising boys by Steve Biddulph, and various documents relating to N's educational progress, including a number of school reports. The father also annexes a report from a kindergarten or pre-school which N attended during the short time that he was in Poland in late 2009/early 2010.
31On 29 October 2013, the mother filed a Form 4A Answer to the Convention access application, together with a document entitled "Cross Application (Access)". In the Answer, the mother asserts the following (among other things):
a)N is a resident of Australia by descent.
b)N is habitually resident in Australia (and has been living in Western Australia with the mother since 31 March 2010).
c)The April 2010 orders remain in full force and effect.
d)In the Convention access application, the father –
... does not seek to assert his "rights of access" under the existing domestic Family Court orders. Rather he appears to seek enforcement of his "rights of custody" under ex parte orders obtained from the Circuit Court in Plock in the Republic of Poland on 2 August 2010. ... These orders "entrust" the father with parental authority and residence of [N], "deprives" me of all parental authority over [N] and provide no orders for contact between me and [N].
e)Because N is habitually resident in Australia, arrangements for his care should be determined by this Court under the relevant Australian legislation, which –
will allow us to attend mediation and provides ongoing assistance to monitor the care arrangements for [N]. It also allows for a detailed assessment of the best interests of [N] and his views, through the assistance of an independent children's lawyer and/or single expert witness and a Family Report.
32The mother also said at [9] – [10]:
•... I am concerned that if [N] travels to Poland to have contact with the father, he will not be returned. If he is not returned, there is no guarantee that I will be able to obtain an order in Poland to ensure his return [to Australia].
•I cannot travel to Poland with [N] ... As I may face criminal charges for child abduction despite the findings in the previous case. ...
33In her Cross Application filed 29 October 2013, the mother seeks that the Convention access application be dismissed and that procedural orders be made to enable the issue of the father's access with N to be dealt with as a substantive issue in this Court (in other words, as part of the WA parenting proceedings).
34The mother's Answer and Cross Application are supported by an affidavit sworn by the mother on 29 October 2013. Among other things, the mother said that the appeal judgment "outlines a fairly accurate background of my relationship with [the father] and the movements of both myself and [N] since his birth".
35In broad terms, the mother denies that she has prevented the father and N from having contact with each other. She said, however, that she became concerned by the nature of the father's contact with N and began to listen to the telephone conversations between them. She asserts that she and the father "were talking quite nicely" at that time, and that they were able to communicate constructively about the dental work N needed and other things. The relationship between the parties seemed to sour, however, after the father notified the Child Support Agency that he had paid for N's dental work and an outstanding Internet account. The effect of the father's communication with the Child Support Agency was that the mother's Government benefits were reduced, which placed her under financial pressure.
36In her affidavit at [31], the mother said:
Recent calls between the father and [N] are very stressful for [N]. The father has been telling him that I am a liar, that he has no future in Australia, I have no money, that his friends can't come over because I have no money for afternoon tea, telling [N] not to listen to me and bribing [N] with toys if he agrees to come to Poland.
37The mother added that the father has not seen N since mid 2011 and has not been back to Australia since that time.
38The mother deposed that she feels unable to return to Poland for the reasons outlined in her answer to the Convention access application. She also said at [39]:
If I travel to Poland with [N] or travel to Poland to try to recover [N] I am fearful that the father will kill me or have someone else kill me. He has a history of being violent to me and making threats to kill me in the past ...
39The mother also listed various factors in support of her argument to the effect that it is in N's best interests to remain living with her in Australia and for the father to spend time with N in Australia and not in Poland. She said at [47]:
I do not want [N] to travel to Poland to see his father. I would prefer that they see each other here in Australia under supervision of an agency. I am willing to supervise contact if this falls on a day when the agency is not open.
40The father swore a third affidavit in support of the Convention access application on 22 November 2013 ("the father's third affidavit"). The father's third affidavit is expressed to be in response to the mother's answer, cross application and supporting affidavit.
41In his third affidavit, the father reiterates his long-standing complaints regarding the mother's alleged "abduction" of N from Poland in early 2010. I do not propose to revisit the issues inherent within these complaints, which have been dealt with in the first instance judgment and the appeal judgment. Leaving aside those matters, therefore, the father said (among other things):
a)N was born in Poland and is a Polish citizen.
b)On 16 November 2013, the mother wrote on her Facebook page:
... real mother will do absolutely everything to separate abusive father – alcoholic from her child ...
c)He strongly opposes the Convention access application (or, more accurately, his application for contact in the broadest sense) being "transferred to the domestic proceedings of [this Court]".
d)He "obeys the law" and (presumably) will comply with all relevant court orders.
e)He "undertakes and declares" that he "will not file a Petition to Polish Court, the Police or to Public Prosecutor, for mother to face criminal charges for abducting [N]" if N travels to Poland for contact with the father.
f)He asserts that the mother "will not be prosecuted in Poland". In support of his assertion in that regard, he refers to an affidavit sworn by [Mr D] on 15 November 2010 (presumably in support of the proceedings before Crooks J which resulted in the first instance judgment). I shall refer to Mr D's affidavit later in these Reasons but note, at this stage, that Mr D did not say that the mother would not be prosecuted in Poland.
g)He joins issue with the mother's version of events surrounding his contact with N and asserts, in essence, that she has not facilitated contact; nor has she encouraged a close and continuing relationship between N and other members of the father's family, including J (N's half sister).
h)N is afraid of the mother, and is afraid to ask her if he can visit the father in Poland or otherwise have contact with the father.
i)The mother's care of N (including, for example, her care of his dental hygiene) has been less than satisfactory. Similarly, the mother "ridicules" N for not knowing how to swim and exposes him to "long hours of violent [video] games"
j)The mother has wasted money, and is a poor money manager. She also "overdoses on heavy alcohol regularly" and exposes N to her "aggressive outbursts".
k)The mother's allegation that the father might kill her (or have her killed) if she were to return to Poland is –
... the effect of her self induced paranoia and imagination, which was initially invented by her for the purpose of abducting [N] and secondly for "going jurisdiction shopping" in Australia to swiftly get sole custody rights over N.
l)The mother told the father in mid July 2013 that, immediately after Crooks J handed down the first instance judgment (in January 2011) and ordered that N be returned to Poland –
... while driving from the Court back home, [the mother] had an unstoppable urge to kill herself and [N] by driving the car into [oncoming traffic].
m)The mother has misstated the amount of child support payable by the father. In this regard, annexure 16 to the father's third affidavit comprises a child support assessment relating to the period 3 November 2012 to 2 February 2014. It reveals that the father is obliged to pay child support for N at the rate of $58.47 per week. The income details used in the assessment record the father's (provisional) income as A$43,243 per annum and the mother's (provisional) income as A$16,618 per annum.
n)He has not delayed the filing of the Convention access application. The delay in the Convention access application being brought to the mother's attention is because the Australian Central Authority has "taken so long to process it".
o)The Convention access application "is for establishing access and contacts with [N], not for the mother's return [to Poland]".
42Mr D is a solicitor admitted to practice in New South Wales. He is also a legal practitioner admitted to practice in Poland, and is a member of the District Bar Association in Warsaw. He swore an affidavit on 15 November 2010: see annexure 17 to the father's third affidavit.
43Mr D deposes to specialising in matters associated with the Convention, and to having knowledge of family law in both Australia and Poland.
44In relation to the Polish orders, Mr D deposes as follows:
a)Proceedings for "divorce, custody, contact and division of matrimonial properties" are conducted by the Polish Courts as one set of proceedings.
b)An order to the effect that one parent is to have "full custody" of a child would only be made "in special circumstances" – such as "where the child's mother leaves the place of the child's habitual residence for good and does not advise the Court of her current overseas address", or where a parent effectively abducts a child and takes him or her abroad, without the knowledge or consent of the other parent.
c)A parent who has been deprived of full custody in relation to a child can apply to vary the order for sole custody on the basis of changed circumstances. The return to Poland of such a parent, with the child, would constitute changed circumstances for this purpose.
45In relation to the mother’s circumstances in the present proceedings, the effect of Mr D's evidence is as follows:
a)If the mother were to return to Poland with N, she still has "rights to contact" with N because the issue of contact was "left open" by the Polish Court in the Polish orders.
b)If the issue of contact cannot be resolved between the parties, then the mother can apply to the Polish Court for orders relating to contact.
c)Subject to certain formalities, the mother would be entitled to work and stay permanently in Poland if she chose to return there.
d)If the mother were to return to Poland, she could not be removed from Poland and returned to Belarus (where she was previously domiciled), because she is "a parent of a child whose custody was granted to the child's father" and because "she has rights to carry on contacts" with that child.
e)If the mother were to return to Poland, she would have "full access to legal assistance" in that country, including "the services of the Police, social security assistance, organisations against domestic violence, legal aid". Similarly, she could receive "free legal representation" if she is minded to commence proceedings "for reinstation (sic) of her full custody right ... and/or contact rights".
46While Mr D's advice is of assistance, it does not deal with the approach the Polish Court is likely to take in the light of the April 2010 orders (which were made some 3 ½ months before the Polish orders were made) and the Full Court's determination to the effect that N was not habitually resident in Poland (and, indeed, that he was habitually resident in Australia). Nor, of course, does it deal with the question of whether the substantive proceedings for parenting orders relating to N should be conducted in Poland or in Australia: see, for example, EJK & TSL (2006) FLC 93-287; Pascarl & Oxley [2013] FamCAFC 47; see also ZP v PS (1994) 181 CLR 639.
47In relation to the matters raised in the previous paragraph, I note the Full Court's comment in the appeal judgment at [118]:
It is also not without significance that the duration of the [the mother's involuntary residence in Poland] was the consequence of the actions of the father, who now seeks to rely upon it. The significance arises from the fact that one of the policies underpinning the Convention is that parents should not be able unilaterally to choose the forum in which they litigate their disputes. In our view, a court ought not strive to find habitual residence in a country where the beneficiary of such a finding had effectively prevented the other parent from leaving that country. This would be especially so in a case where it is suggested that a child had become habitually resident in a country in which he spent the last five months, when the other available forum for determination of any dispute is the country in which the child had been habitually resident for the previous three years.
48Pursuant to procedural orders made on 1 October 2013, the Convention access application came on for hearing on 24 December 2013. Between the date of filing of the father's third affidavit and the hearing date, however, it became apparent that the SCA was unwilling to pursue the Convention access application, and proposed to withdraw from the proceedings. Thus:
a)On 2 December 2013, the solicitors for the SCA wrote to the father via the Australian Central Authority. Among other things, they said:
As you are aware, [the mother] sought and obtained orders from the WA Family Court on 21 April 2010 that your son live with [the mother] and providing for you to have access as agreed by the parties. Despite these orders, [the mother] is prepared to consent to discharge of the orders and access in accordance with [the orders sought by her in the answer and cross application].
The orders proposed by [the mother] ... seem reasonable and appropriate. I suggest that you seek independent legal advice in relation to the proposed orders.
Withdrawal from Hague Proceedings
In view of the reasonable offer made (that is, the proposal for reasonable and appropriate orders in the domestic proceedings), I do not consider that it is appropriate to proceed to trial with this application. Accordingly, the Central Authority will withdraw from the Hague Convention access application.
I suggest that you contact Legal Aid WA directly or through your legal adviser to either negotiate in relation to the terms of the orders or to arrange mediation in the domestic proceedings. ...
b)Upon receipt of the letter of 2 December 2013, the father wrote to this Court seeking permission to represent himself "at the Hague access and contact proceedings/hearings only". He advised the Court that he had asked the Australian Central Authority to review its decision to withdraw and had involved the Polish Central Authority.
c)In a statement dated 11 December 2013 (forming part of his letter to this Court of the same date), the father said that he does not accept the decision of the Full Court in the appeal judgment. He indicated that it is his intention to challenge the decision in any manner that is legally available to him. He also indicated that he is aggrieved by the Australian Central Authority "prolonging" the Convention access application. Further, he reiterated that:
I do not recognise Australian jurisdiction in any domestic child related proceedings brought before the Australian Courts by [the mother], or by [the mother's] representative/solicitors. I did not and I do not submit to any Australian domestic proceedings in relation to my divorce with [the mother] and in relation to [custody of N].
d)On 19 December 2013, the solicitors for the SCA wrote to this Court advising that the applicant would be seeking to withdraw from the proceedings and would file submissions in relation to the matter in the near future.
e)On 20 December 2013, the applicant in the Convention access application filed a minute of proposed orders. The orders sought are as follows:
1.The applicant have leave to withdraw from these proceedings.
2.The [Convention access application] be dismissed, or alternatively, the [Convention access application] be stayed until further order.
f)At the same time, the applicant in the Convention access application filed written submissions regarding the father's standing to continue the Convention access application in his own right ("the SCA's submissions").
g)On 23 December 2013, the father wrote to this Court. He confirmed that he had received the SCA's submissions and was aware that it proposed to withdraw from the proceedings. He also confirmed that the Convention access application "is strictly about access and contact" and that he was not "submitting to domestic proceedings". He added that his daughter, J, would be present in court on 24 December 2013. J "is 24 years old and a graduate of Curtin University as a Registered Nurse".
Hearing on 24 December 2013
49The hearing proceeded on 24 December 2013. Ms Thatcher appeared for the applicant. Mr Mather appeared for the respondent mother. Given that the SCA had not yet been given leave to withdraw, it was unnecessary to hear from the father directly at that stage. The father's daughter, J, confirmed her attendance in the body of the court.
50Shortly after the commencement of the hearing, Mr Mather handed up a document headed "Respondent's Outline of Submissions for Hearing on 24 December 2013" ("the mother's submissions").
51After hearing submissions from Ms Thatcher and Mr Mather, and after communicating directly with J (who indicated that she had conveyed the Court's comments to the father), I ordered that the applicant have leave to withdraw from the proceedings and that they otherwise be adjourned to 18 March 2014. I directed that a transcript of the hearing on 24 December 2013 be prepared and provided to the parties.
52The purpose of the adjournment was to enable the Court to consider the question of whether the father can or should be permitted to conduct the Convention access application in his own right, and if he cannot or is not so permitted, then how the Convention access application should be dealt with. Alternatively, and if the father can and is permitted to conduct the Convention access application in his own right, the question arises as to how the proceedings should be managed. A further question arises as to the approach that the Court should adopt in considering and determining the proceedings in the broadest sense.
Uncontroversial matters
53Before considering the matters referred to in the previous paragraph, it is convenient to identify a number of matters that are, or should be, uncontroversial:
a)The April 2010 orders remain in full force and effect.
b)The April 2010 orders to the effect that N live with the mother and spend time with the father as agreed between the parties, and the watch list order made on that day, are all orders "until further order". It follows that they are not final orders.
c)The Polish orders were made at least three months after the April 2010 orders.
d)The Polish orders are not expressed to be interim orders or orders "until further order".
e)There has been no appeal from the orders of the Full Court made pursuant to the appeal judgment.
f)The Full Court held that the SCA failed to discharge the burden of proving, on the balance of probabilities, that N was habitually resident in Poland. It follows that the mother's removal of N from Poland was not in breach of the Convention.
g)The Full Court also held that N had been habitually resident in Australia for three years before the family travelled to Poland in October 2009, and that he did not acquire habitual residence in Poland during the period of approximately 5 months between his arrival in that country in October 2009 and his removal from it in March 2010: see the appeal judgment at [118].
h)It is clear beyond argument, therefore, that N has been habitually resident in Australia at all relevant times. Most importantly, it is clear beyond argument that N was habitually resident in Australia when the Convention access application was filed and at all times since then.
i)The father has stated clearly and consistently that the Convention access application is about access or contact only. The father has also stated clearly and consistently that:
i)he does not accept the Full Court's orders;
ii)he regards the mother as having abducted N from Poland in breach of the Convention;
iii)he does not accept that Australia "has jurisdiction" over N in any domestic child related proceedings;
iv)he does not "submit to any Australian domestic proceedings in relation to ... custody of [N]";
v)he relies upon the Polish orders as comprising "a final parental order ... made absolute" by the Polish Court; and
vi)he does not resile from his criticisms of the mother – as a parent and as a person – raised in the original proceedings (being the proceedings the subject of the first instance judgment and the appeal judgment).
j)The father has clearly argued that it would be in N's best interests to be removed from the mother's care and to live with him in Poland. In doing so, he has consistently raised issues regarding the fitness of the mother to have the day-to-day care of N.
k)The father has presented no proposal whatsoever as to how the Polish orders might be reconciled with the April 2010 orders in the event of N travelling to Poland for the purpose of contact. Nor has he presented any proposal as to how the Polish orders might be reconciled with any orders that this Court might make as a consequence of the Convention access application. To this extent, the father's approach is disingenuous, if not duplicitous.
54In all the circumstances, there can be no doubt that the matters in dispute between the father and the mother go well beyond the formulation of orders for access or contact.
Withdrawal of SCA from the proceedings
55During the course of her submissions on 24 December 2013, Ms Thatcher made it clear that the SCA is not prepared to pursue the Convention access application. She confirmed that the SCA "does not take instructions" from the father and that it is not obliged to "push his desires". She also confirmed that the SCA is of the view that the mother's proposals for contact between the father and N are reasonable and appropriate.
56Ms Thatcher submitted that the WA parenting proceedings comprise the appropriate vehicle (as it were) for the determination of the contact dispute. Put another way, because the matters in controversy between the parties go far beyond the simple formulation of contact orders, the Convention access application is a wholly unsuitable vehicle for the determination of the parties' dispute.
57Ms Thatcher cited the recent decision of Kent J in Secretary, Attorney-General's Department v McDonald (2013) 48 Fam LR 593 ("McDonald") in support of her argument to the effect that the justiciable controversy in the current proceedings can and should be dealt with under FLA Part VII, and that the Convention access application should be stayed to enable the WA parenting proceedings to be run and determined in the usual way. Mr Mather supported Ms Thatcher's submission in this regard, and argued that the following passages from McDonald adhere to the current dispute:
[121] ... [The] justiciable controversy identifiable in this case attracts the jurisdiction under Part VII of the Act ...
[122] In comparison to the Regulations, Part VII provides the statutory means and sources of power by which the whole controversy between the parents, and the person arguably most affected by its outcome, namely the child, would obtain resolution and importantly would remove the risk of this application being litigated to trial only for the outcome to be followed by a Part VII application.
[123] Part VII interim orders can be made to effect a graduated involvement over time of a parent ... if that be determined to be in [the child's] best interests. Whilst I do not suggest that interim orders cannot be made in an application under the Regulations, the rules and the case management procedures of the Court are framed by reference to Part VII rather than the somewhat rare applications of this kind and there would be, in my view, significant procedural advantages in the matter proceeding under Part VII.
[124] ... Part VII contains comprehensive provisions including not only extensive sources of power to make orders and a range of mechanisms designed to achieve that, with the best interests of the child being the paramount consideration, parenting orders are ultimately made to achieve that imperative. Allied with this are the Family Law Rules 2004 apposite to proceedings and orders under Part VII and other provisions of the Act directed to “parenting orders” and the enforcement of parenting orders and the observance of obligations which parenting orders impose.
...
[126] In comparison to the Regulations, Part VII provides, for the reasons outlined, the means by which the whole controversy and the parties to it (i.e. the parents) will obtain resolution and importantly would remove the risk of the parties, having litigated this application to its conclusion, for the outcome to be followed by a Part VII application.
[127] Division 12A within Part VII provides a particular regime for the manner in which child-related proceedings are conducted and includes provisions by which technical evidentiary rules are avoided or minimised.
58Although the solicitors for the SCA are not the father's solicitors, and although the SCA cannot be compelled to do the father's bidding (notwithstanding its obligations under the Convention, to which I shall refer presently), it is useful to record that it has long been the law that, even though a solicitor's retainer to conduct proceedings continues until the final conclusion of the proceedings (in other words, the retainer comprises an "entire contract" to conduct the proceedings to the end), the retainer can be terminated by the client discharging the solicitor or the solicitor discharging himself or herself for good cause and upon reasonable notice: see Underwood, Son & Piper v Lewis [1894] 2 QB 306 ("Underwood"). Put another way, and as A L Smith LJ said in Underwood at pp 314-5, a solicitor cannot "throw up his retainer without rhyme or reason", whether or not the solicitor may have given notice of his intention to do so; "good cause" is required:
... prima facie the contract of the solicitor, when he accepts a retainer in a common law action, is an entire contract to carry on the action till it is finished, and he cannot sue for costs before the action is at an end. On the other hand, it is clear that the solicitor may be placed in such a position by the client as to absolve him from the further performance of that contract. [Similarly] the client may put the solicitor in such a position as to entitle him to decline to proceed; for instance, if the solicitor asks for necessary funds for disbursements, and such funds are refused by the client, the solicitor is not bound to go on; and ... the solicitor is not bound to go on acting for the client if the client insists on some step being taken which the solicitor knows to be dishonourable; and many other cases may be supposed in which the solicitor may be entitled to refuse to act for the client any further. I should say that, when a solicitor is in a position to show that the client has hindered and prevented him from continuing to act as a solicitor should act, then upon notice he may decline to act further ...
59In Lewis Blyth & Hooper v Dennis [2007] WASC 177, however, Newnes J said:
49In Cachia v Isaacs (1985) 3 NSWLR 366 at 377 - 378, Hope JA (with whom Kirby P agreed) said that the common law rule referred to in [Underwood] is only a prima facie rule and is subject to numerous qualifications. His Honour said:
“ The decisions as to what are or are not entire contracts of retainer, and in what circumstances they may be terminated, involve no more than the application to solicitor-client contracts of principles generally applicable to contracts, except to the extent that questions of public policy intrude. Whether a contract in respect of the conduct of proceedings at common law (or in any jurisdiction) is an entire contract must be determined by reference to the circumstances of the particular case, as must the question of what terms are to be implied as to the right of the solicitor or the client to terminate the retainer upon due notice or otherwise.”
50 In Del Borrello v Friedman and Lurie (A Firm) [2001] WASCA 348, Kennedy J (at [67] - [68]) observed that the general rule that a retainer in respect of litigation is an entire contract may be overstating the position. Kennedy J referred to Cordery, "Law Relating to Solicitors" 8th ed, 1988, at 71, where the learned authors say the general rule appears to have originated in the common law courts when the cost of litigation was low and actions were speedily disposed of.
51 In Clairs Keeley (A Firm) v Treacy [2005] WASCA 86, the Court of Appeal (at [41]) said the proposition that a solicitor's retainer is an entire contract is not supported by modern authority in this State, referring to Del Borrello v Friedman and Lurie.
52 It is obvious that litigation has undergone very great changes since 1894, and particularly in the last 30 or 40 years or so with the enactment of a plethora of new or expanded rights of action and remedies, and substantial developments in the common law and in equity. All that, together with rapid advances in technology and fundamental changes in the nature of commercial life (including seemingly exponential increases in the amount of documents generated), has inevitably changed the face of litigation. Contested litigation nowadays is more often than not protracted and all too rarely simple. It is a very long way indeed from common law litigation of the nineteenth century.
53 It is then, I think, fair to say that there is now very limited scope for what Lord Esher MR referred to in [Underwood] as the obvious implication of the entire contract rule in the retainer of a solicitor to conduct litigation. It seems to me that the nature of litigation has so changed that as a statement of general principle that is no longer apt. I would, with respect, adopt what was said by Hope JA in Cachia v Isaacs as being the proper approach.
60Irrespective of questions associated with whether or not a contract of retainer is an "entire contract", Underwood can properly be regarded as being "concerned with discussing some of the incidents that generally pertain to the relationship of solicitor and client", and as authority for the proposition that "as a general rule a solicitor should have good cause for withdrawing his services": Plenty v Gladwin (1986) 60 ALJR 665.
61Subject to the qualifications to which I have referred (namely, that the solicitors for the SCA are not the father's solicitors and the SCA is not obliged to do the father's bidding), it is clear that, even if a contract of retainer had been entered into between the father and the SCA (or the SCA's solicitors), the SCA had good cause for withdrawing as, or withdrawing its services as, the applicant in the Convention access application. The father was not prepared to accept its advice in relation to the conduct of the proceedings (and, in particular, in relation to the question of whether the WA parenting proceedings comprise a more suitable "forum" for the determination of the contact dispute) and was not prepared to compromise his claims on terms which the SCA felt were more than reasonable. It is abundantly clear that, given the factors I have described above as being uncontroversial, the SCA formed the view that the Convention access application was being misused by the father for purposes other than a simple application for access to N. In that regard, the father was continuing to assert that N should live with him in Poland on a permanent basis (even if he did not seek orders to that effect in the Convention access application), and was effectively "keeping his options open" in relation to the enforcement of the Polish orders.
62It follows from the above that the SCA should have leave to withdraw from the proceedings. The question then arises as to whether the father has standing to pursue the Convention access application in his own right.
Father's standing to pursue the Convention access application in his own right
63Ms Thatcher submits that the father cannot conduct the Convention access application in his own right. Mr Mather supports Ms Thatcher in this regard.
64The SCA's argument is contained in [14] to [28] of the SCA's submissions.
65The relevant provisions of the Convention as they relate to contact or access are as follows:
Article 1 (under the heading: Chapter I "Scope of the Convention")
The objects of [the Convention] are ... to ensure that rights of custody and of access under the law of One Contracting State are effectively respected in the other Contracting States.
Article 5 (under the heading: Chapter I "Scope of the Convention")
For the purposes of [the Convention] – ... "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.
Article 7 (under the heading: Chapter II "Central Authorities")
Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures –
...
(f)to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access; ...
Article 21 (under the heading: Chapter IV "Rights of Access")
An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect to the conditions to which the exercise of these rights may be subject.
Article 27 (under the heading Chapter V "General Provisions")
When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.
Article 29 (under the heading Chapter V "General Provisions")
This convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of [Article 21] from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.
66It is clear from the above that, prima facie, Article 29 of the Convention permits the father to continue the Convention access application in his own right. The SCA asserts, however, that Article 29 has not been incorporated in the Regulations.
67FLA Part XIIIAA deals with international conventions, international agreements and international enforcement. The Convention is the subject of FLA s 111B, which is contained in Division 2 of Part XIIIAA. To the extent that it is relevant to the current proceedings, s 111B is as follows:
111B Convention on the Civil Aspects of International Child Abduction
(1)The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under [the Convention] ...
(1A)In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:
...
(c)relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.
...
(1E)Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of:
(a)whether an order or determination (however described) has been made under a law in force in another Convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or
(b)if the child was removed to Australia—when that happened; or
(c)whether the child has been wrongfully removed to, or retained in, Australia.
(2)Because of amendments of this Act made by the Family Law Reform Act 1995:
(a)a parent or guardian of a child is no longer expressly stated to have custody of the child; and
(b)a court can no longer make an order under this Act expressed in terms of granting a person custody of, or access to, a child.
(3)The purpose of subsection (4) is to resolve doubts about the implications of these changes for the Convention. That is the only purpose of the subsection.
(4)For the purposes of the Convention:
...
(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 under a parenting order;
should be regarded as having a right of access to the child.
(5)Subsection (4) is not intended to be a complete statement of the circumstances in which, under the laws of the Commonwealth, the States and the Territories, a person has, for the purposes of the Convention, custody of, or access to, a child, or a right or rights of custody or access in relation to a child.
(5A)Subsections (1A) and (2) to (5) do not, by implication, limit subsection (1).
(6)Expressions used in this section have the same meaning as they have in Part VII.
68The Regulations are made pursuant to FLA s 111B, and their purpose is "to give effect to s 111B": reg 1A(1).
69Regulation 1A(2)(b) provides that the Regulations "are intended to be construed ... recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence".
70Part 3 of the Regulations (comprising regs 14 to 21) deals with court applications for orders other than orders for access – such as return orders and orders for the delivery of a child's passport. Part 4 of the Regulations (comprising regs 23 to 25A) deals with requests to Central Authorities and court applications for access.
71Regulation 25 provides that a responsible Central Authority may apply to the court for, inter alia, an order specifying with whom a child is to spend time or communicate or any other order that the Central Authority considers appropriate to give effect to the Convention.
72Regulation 6 (in Part 1 of the Regulations, under the heading "Preliminary") is in the following terms:
6These Regulations do not affect other powers of, or rights of application to, a court
(1)These Regulations are not intended to prevent a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights.
(2)These Regulations are not to be taken as preventing a court from making an order at any time under Part VII of the [FLA] or under any other law in force in Australia for the return of a child.
73It is clear that reg 6(1) refers to "rights of custody" only, and not to "rights of access". The omission is deliberate, as is apparent from the following passages of the SCA's submissions (which I accept and adopt):
15.The original provisions in relation to seeking a return order (regs 11 to 16) included reg 14 which provided "[n]othing in these Regulations prevents a person, institution or other body from applying directly to a court of competent jurisdiction, whether or not under the Convention, in respect of the breach of rights of custody of, or breach of rights of access to, a child removed to Australia". The Explanatory Statement for the Regulations indicated that reg 14 gave effect to Article 29 of [the Convention].
16.Article 29 provides that "[the Convention] shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention".
17.In 1995 amendments were made omitting reg 14 ... A new reg 6 was inserted which read:
(1)These Regulations are not to be taken as removing or affecting any power of a court, or the right of any person or body to apply to a court, under Part VII of the [FLA] or under any other law in force in Australia.
(2)These Regulations are not to be taken as preventing a court from making an order at any time under Part VII of the [FLA] or under any other law in force in Australia for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.
18.The Explanatory Statement described the new reg 6 as follows:
Provisions in existing regs 14 and 25 are now relocated in new reg 6.
19.Although it was accepted following the 1995 amendments that a parent could commence a return order application in his or her own right (see Panayotidis v Panayotidis (1997) FLC 92-733), the subsequent Full Court authority of A v GS [2004] FamCA 967 declined to follow Panayotidis and found that only the Central Authority has standing to apply for an order for the return of a child to the country in which [the child] habitually resided immediately before the removal or [retention] under the Regulations.
20.The Regulations were amended in 2004 following the decision in A v GS by substituting a new reg 14 which read [in part]:
14(1)If a child is removed from a convention country to, or retained in, Australia, the responsible Central Authority, or a person, and institution or another body that has rights of custody in relation to the child for the purposes of the Convention ... may apply to the court ... for any of the following orders ...
21.The orders [referred to in reg 14(1)] include orders for the return of the child, but not orders for access/contact.
22.The Explanatory Statement provided that –
[a] purpose of this amendment is to specifically provide that an application for orders under reg 14(1) ... may be made by an applicant other than the ‘Central Authority ...’ This overcomes the effects of the decision of the Full Court of the Family Court in [A v GS] which ruled that an individual could not apply to a court under these Regulations.
74Regulation 25 is in the following terms:
Application for access to child in Australia
(1)The responsible Central Authority may apply to the court ... for any of the following orders:
(a)an order specifying with whom a child is to spend time or communicate;
(b)an order for the issue of a warrant mentioned in regulation 31;
(c)any other order that the responsible Central Authority considers appropriate to give effect to the Convention.
(2)...
75As explained above, reg 25 is contained in Part 4 of the Regulations, headed "Requests to Central Authorities and court applications for access".
76Regulation 25 in its present form has its genesis in amendments to the Regulations contained in the Family Law Amendment Regulations 2004 (No. 3) 2004 No. 371. The Explanatory Statement dealing with those amendments ("the 2004 Explanatory Statement") included a comment to the effect that reg 25 had been re‑drafted "to clarify that only a responsible Central Authority may make an application to the court for orders under reg 25" and that it "remains open to an Article 3 applicant to apply for contact orders under Part VII of the [FLA]". An "Article 3 applicant" is a person, institution or other body that has made an application under certain of the provisions of reg 14(1)(b) or (2); in other words, a person, institution or other body having rights of custody in relation to a child: see reg 2(1).
77Regulation 14 in its current form is in Part 3 of the Regulations, under the heading "Court applications, except for access". It provides as follows (emphasis added):
14Applications to court
(1)If a child is removed from a convention country to, or retained in, Australia:
(a)the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders:
(i)a return order for the child;
(ii)an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention;
(iii)an order for the issue of a warrant mentioned in regulation 31;
(iv)an order directing that:
(A)the child not be removed from a specified place; and
(B)members of the Australian Federal Police prevent the child being removed from that place;
...
(vi)any other order that the responsible Central Authority considers appropriate to give effect to the Convention; or
(b)a person, institution or other body that has rights of custody in relation to the child for the purposes of the Convention may apply to the court, in accordance with Form 2, for an order mentioned in subparagraph (a) (i), (ii), (iii), (iv) or (v).
(2)If the responsible Central Authority, or a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention, has reasonable grounds to believe that there is an appreciable possibility or a threat that the child will be removed from Australia, the responsible Central Authority or person, institution or other body may:
(a)apply to the court, in accordance with Form 2, for an order for the issue of a warrant ...; or
(b)apply to the court for an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention.
...
78Because reg 14 is contained in Part 3 of the Regulations, the applications referred to in it can only be applications for orders other than orders for access. Applications for orders for access form the subject of Part 4 of the Regulations.
79In the light of the matters discussed above, and taking into account the different terminology employed in reg 14 (in Part 3) on the one hand and reg 25 (in Part 4) on the other, it is apparent that an application under reg 25 can only be made by a Central Authority or its delegate. It follows that the father in the present proceedings does not have standing to pursue the Convention access application in his own right. That such is the case is unsurprising when regard is had to the introductory remarks in the 2004 Explanatory Statement:
Section 111B of the [FLA] provides that the Regulations may make such provision as is necessary to enable Australia to perform its obligations, or obtain any advantage or benefit, under [the Convention]. This Convention deals with the civil, not criminal, aspects of international child abduction.
The objects of [the Convention] are to secure the prompt return of children wrongfully removed to or retained in any Convention country, and to ensure that rights of custody and access to children under the laws of a Convention country are effectively respected in the other Convention countries. Australia signed and ratified the Convention on 25 October 1986, and the Convention came into force in respect of Australia on 1 January 1987.
The purposes of the [amending] Regulations are to:
...
(c)amend the Child Abduction Regulations to make various other amendments to these regulations, including:
•to specifically provide that an application for orders for the return of a child may be made by an individual as well as by the Central Authority, the body which carries out Australia's convention obligations;
•to clarify that only a responsible Central Authority, and not an individual, may make an application for contact orders under the Child Abduction Regulations, and
•to make other various amendments, including minor technical amendments. (Emphasis added.)
If the father lacks standing to pursue the Convention access application in his own right, is he left without a remedy?
80I have concluded that the father cannot make an application to the Court, under the Convention, for orders for access/contact; only a responsible Central Authority is empowered to do that. Similarly, the father cannot take over the conduct of proceedings (under the Convention) for access/contact that have been regularly commenced by a responsible Central Authority. It is clear from the matters discussed above, however, that the father has every right to apply for orders for access/contact under FLA Part VII. Indeed, the 2004 Explanatory Statement and the current Regulations make it abundantly clear that the appropriate forum for resolving an access/contact dispute should (ordinarily) be the country of the child's habitual residence – which (in this case) is clearly Australia – and that the law to be applied in resolving the dispute should be Australian domestic law.
An alternative proposition
81If I am wrong in concluding that the father does not have standing to pursue the Convention access application in his own right, then the question arises as to whether this Court should permit him to do so. Put another way, if the father is entitled to pursue the Convention access application in his own right, should that application nevertheless be stayed and the father be directed to participate in the WA parenting proceedings?
82Kent J was required to consider a similar question in McDonald. In McDonald, as in the present proceedings, the mother had brought the parties' child from Europe (Belgium) to Australia without the father's knowledge or consent. The judge at first instance ordered the child to be returned to Belgium, but the Full Court allowed the mother's appeal, set aside the trial judge's orders and dismissed the Central Authority's application for return of the child. Some six years after the Full Court's decision, the Central Authority applied for orders granting the father access to the child. By that time, the child had lived in Australia for nearly 8 years. The mother argued that the dispute should be managed and resolved by the Family Court in the exercise of its jurisdiction under FLA Part VII. The Central Authority argued that the dispute could be dealt with as an application for access to a child pursuant to the Regulations.
83In the process of discussing the Regulations, Kent J at [40] referred to the following passage from the 2004 Explanatory Statement:
It is intended that in [the Regulations] an order for contact (however described) means an order providing for contact between a child and another person or persons made pursuant to an application under regulation 25 as distinct from a contact order made under Part VII of the Family Law Act 1975. (Emphasis added.)
84His Honour then said at [41] that, as the 2004 Explanatory Statement emphasises, "the power to make an order for contact (or access) under the Regulations is separate and distinct from the court's jurisdiction to make parenting orders under Part VII". The relevant power is contained in reg 25A, which provides:
25AOrders
(1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under subregulation 25(1):
(a)make an order of a kind mentioned in that regulation; and
(b)make any other order that the court considers to be appropriate to give effect to the Convention; and
(c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
(2)In determining an application made under subregulation 25(1) seeking an order of the kind mentioned in paragraph 25(1) a), the court must have regard to the matters set out in section111CW of the Act if the convention country under the laws of which the person mentioned in paragraph 24(1)(a) claims to have access rights to the child is also a Convention country within the meaning of subsection 111CA(1) of the Act.
(3)The court may make an order under subregulation (1) regardless of:
(a)whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or
(b)if the child was removed to Australia — when that happened; or
(c)whether the child has been wrongfully removed to, or retained in, Australia.
(4)If the responsible Central Authority applies to the court for an order under subregulation (1), and the order is made, the Commonwealth Central Authority or the State Central Authority is not required to make or pay for the arrangements that are necessary to give effect to the order.
85Kent J said at [54] that "it would not be legitimate to dismiss [the Central Authority's application] for want of jurisdiction". His Honour added:
Clearly, the court has jurisdiction under s 39(5) of the [FLA] to entertain the application by the central authority on the basis of reg 24 which mandates the central authority taking action if the relevant conditions within it are met, and reg 25 which permits an application to the court.
86Having concluded that the Family Court had jurisdiction to deal with the Central Authority's access application, Kent J proceeded to consider the principles that should apply to such an application. His Honour began by noting that the powers granted under reg 25A are conditional. Regulation 25A(1) clearly provides that the court may only make access orders, or orders relating to access, if the court "is satisfied that it is desirable to do so".
87After referring to and discussing a number of relatively recent first instance decisions (including State Central Authority v Peddar [2008] FamCA 519 (“Peddar”), State Central Authority v Quang (2009) 42 Fam LR 288 and Director-General, Department of Family and Community Services v Brooks [2012] FamCA 179), his Honour said in McDonald:
[72]What those cases highlight is that there is a clear distinction between the accepted principles applying to an application for a return order and those applicable to an application for access orders. In the making of a return order, the authorities make it clear that the best interests of the subject child [do not comprise] the primary consideration in making such an order. That is because a return order is essentially only an order deciding upon the correct forum in which any parenting dispute ought be heard. Following the making of a return order, a court in the Convention country of origin will look at the substantive dispute between the parents on its merits and the implicit assumption made is that it is in the child’s best interests for that resolution to occur in the country of origin.
[73]An application for access orders is a different creature altogether. Once an order of this kind is made, no other court will be tasked with considering the best interests of the child or the substantive disputes between the parties. This is of especial concern in Australia, where a central authority can apply to ‘establish’ the effective exercise of rights of access which had never been approved in the form in which they are sought by any court in any jurisdiction as being by reference to the subject child’s best interests. An access order thus has far different consequences to a return order in that it affects the actual substantive rights of the parents and child and not simply the forum in which a dispute about those rights ought be heard.
88Kent J at [86] then turned to the question of whether an application for access under the Regulations should be treated "as if [it comprised] proceedings under Part VII".
89His Honour concluded at [84], that "the paramountcy principle" (in other words, the principle that the relevant child's best interests must comprise the paramount consideration in a parenting case) should adhere to an application for access under the Regulations in the same way as it applies to proceedings under Part VII – to the extent that the application for access under the Regulations seeks "to 'establish' the effective exercise of rights of access not derived from any judicial or administrative decision previously made". Kent J then sought to draw a distinction between the two types of proceedings. In doing so, his Honour highlighted the fact that the father in the case before him could not apply for orders under reg 25 because the application had to be brought by the Central Authority. It appears that this proposition was not argued specifically before his Honour (given that the Central Authority was content to pursue the reg 25 application on behalf of the father in that case) – but his Honour's conclusions sit comfortably with the conclusions that I have reached in these Reasons. Thus, his Honour said:
[93]Pursuant to reg 25 only a Central Authority may apply to the Court for orders. That is, neither parent is entitled to apply for orders pursuant to the subject regulations. Contrast this to Part VII and s 65C which prescribes who may apply for a parenting order. It could not be legitimately contended here that the Central Authority is a “person concerned with the care, welfare or development of [the child]” within the meaning of that section.
[94]As the explanatory statements earlier referred make clear if it were not already so, not only does reg 25 when amended in 2004 make it plain that only a responsible central authority may make an application to the Court for orders under reg 25 it always remains open for a parent to apply for “contact orders” under Part VII under the Act separate to any application under the Regulations. ...
[95]Of fundamental importance is that the Central Authority, and not the parent, is the party to the proceedings. That is, in this application the Father is not a party. Only the Central Authority and the Respondent Mother are parties.
90Kent J also emphasised at [98] that the Central Authority does not act on the instructions of the parent on whose behalf it brings an application under the Regulations. Similarly, the parent cannot "instruct" the Central Authority in the way a client instructs his or her legal representatives.
91Ultimately, and as I have mentioned elsewhere in these Reasons, his Honour based his conclusion to the effect that the application for access under the Regulations should be stayed pending the hearing and determination or finalisation of the FLA Part VII proceedings on the fact that there was a single "controversy" to be determined by the Court. The dispute was not limited to the establishment or enforcement of rights of access under the Convention and/or the Regulations. Instead, the relevant controversy involved a significant dispute between the parents of the child regarding parenting arrangements in the broadest sense. The establishment and/or exercise of access rights comprised no more than a part of that controversy – albeit a significant part.
92In McDonald at [117], as in the present case, the overseas parent continued "to agitate aspects relating to the original removal proceedings". Kent J regarded the overseas parent's attitude in that regard as corroborative of his view that the controversy between the parents went well beyond "simply formulating orders for access".
93Kent J relied upon a number of factors to support his conclusion to the effect that the application under the Regulations should be stayed in favour of an application under Part VII, including:
a)the "justiciable controversy" before the court attracted the jurisdiction of FLA Part VII, and the exercise of the powers available under Part VII was necessary for the resolution of the controversy;
b)Part VII allows for the more efficient management of a process designed to enable the overseas parent to gradually reinvolve himself in the child's life;
c)Part VII and the Family Law Rules provide a clear and familiar "range of mechanisms" (including, where appropriate, modified rules of evidence) to ensure that the best interests of the child the subject of the litigation can be promoted in accordance with the paramountcy principle; and
d)proceedings under Part VII enable the court to make a far wider range of parenting orders can be made under the Regulations.
94In State Central Authority: Commissioner of Police, South Australia & Philbrook [2013] FamCA 364 ("Philbrook"), Dawe J was also required to consider an application for access brought by a Central Authority under the Regulations. In that case, as in McDonald and the present case, the father was living in a European country (France) and the mother and the relevant child were living in Australia. The orders sought by the applicant Central Authority were identical to access orders made by a French court of competent jurisdiction in mid 2005. The mother sought orders to the effect that the French orders be discharged and the overseas parent have no contact with the child.
95Her Honour observed that both parties relied upon the decision of Bennett J in Peddar in support of the proposition that the best interests of the child comprise the paramount consideration when determining what orders, if any, should be made under reg 25A: Philbrook at [83]. Dawe J preferred the approach adopted by Kent J in McDonald, however, and concluded that the best interests of the child "may not always be the paramount consideration in every application to access pursuant to [the Regulations]": Philbrook at [85]. Having said that, her Honour concluded at [88] that, in all the circumstances of the case then before her, the best interests of the child did indeed comprise the paramount consideration. The orders of the French court were relevant, but "ultimately subservient to the paramount consideration of the best interests of the child".
96In determining what was in the child's best interests, Dawe J applied the provisions of FLA Part VII and, in particular, s 60CC. That is not surprising, of course, because s 60CC(1) states, relevantly, that, in determining what is in a child's best interests, the court must consider the matters set out in s 60CC(2) and (3). Her Honour did not find it necessary to search for or apply some other list of factors or relevant criteria for determining what might be in the relevant child's best interests, notwithstanding that she was dealing with an application for access under the Regulations and not an application under Part VII. To that extent, Dawe J's approach was in accordance with that adopted by Bennett J in Peddar, where her Honour said:
[31]... The provisions in the Regulations which provide for mandatory return and exceptions thereto are provisions which relate to forum. They are not provisions which relate to the long term welfare of children. Therefore the welfare of the children or best interests of the children are not paramount considerations to which a court must have regard in such cases.
[32]By contrast, with few exceptions, access cases under the Regulations, arise for consideration in this court after the child has assumed Australia as his/her place of habitual residence. The children concerned are already habitually resident in Australia and are subject to Australian law. In my view, a child in respect of whom the access provisions of [the Convention] are appropriately engaged pursuant to the Regulations, should have his or her parenting arrangements determined according to the law which applies to all children in Australia. That is because such children ... are now habitually resident in Australia.
97The circumstances confronting the Court in Peddar were not significantly different to those dealt with in McDonald and Philbrook. The children, the subject of the proceedings, had relocated from Sweden to Australia with their father in 2004, pursuant to orders made in a Swedish court. The mother continued to reside in Sweden. The relevant Central Authority, acting on the request of the mother, sought orders to facilitate the mother's rights of access to the children pursuant to the Swedish orders.
98Bennett J said in Peddar at [52]:
... [Once] the central authority fulfils its administrative function of bringing [an access dispute] before the Court, the matter falls to be determined according to the legal principles applicable to all other children under the jurisdiction of the Family Law Act. That is not to say that the existence and recency of an access order from overseas is not relevant or that one can ignore the international nature of the case and the purpose of [the Convention]. However, there is more than sufficient capacity in the matters which must be considered according to our domestic law to examine closely and give significant weight to those aspects of the case.
99Her Honour summarised her approach at [67]:
... I consider that the present proceedings are proceedings brought under Part VII of the Family Law Act. The proceedings are able to be initiated by the applicant State Central Authority because of the provisions of the Regulations which implement the 1980 Convention.
100It is unnecessary for me to indicate whether I prefer the reasoning in McDonald to the reasoning in Peddar. Once it is accepted that a child's best interests comprise the paramount consideration in proceedings before this Court, then – irrespective of whether the proceedings were commenced under the Regulations or under Part VII of the FLA – the only approach that can realistically be adopted is to follow the "pathway" mandated by FLA Part VII and, in particular, to apply the provisions of s 60CC. This must be so, because the Regulations do not define the factors that can or should direct the Court in its consideration of what orders are likely to be in the child's best interests. It is impossible to look at the question of whether proposals are in the best interests of a child without measuring or assessing that consideration by some yardstick (as it were). If the child is habitually resident in Australia, then that yardstick is to be found in Part VII. Further, and where, as in the present case –
a)an Australian intermediate court of appeal has specifically rejected submissions to the effect that the child's habitual residence is elsewhere than in Australia (and that court's decision has not been challenged on appeal);
b)the parent with whom the child resides in Australia has properly commenced proceedings under FLA Part VII for parenting orders (which proceedings remain to be determined); and
c)the dispute or "controversy" between the child's parents is broader than the enforcement of pre-existing access rights or, indeed, the introduction of new access arrangements (in that, for example, the parent who resides overseas does not accept that the child should continue to live with the Australian based parent),
it is even more apparent that the provisions of Part VII should adhere to the dispute. Indeed, the proposition that Part VII should apply is unassailable.
101For the reasons I have already given, it is clear that N's best interests comprise the paramount consideration in the proceedings currently before this Court (whether the proceedings are pursuant to the Regulations or under FLA Part VII). In those circumstances, it is little more than sophistry to suggest that the dispute between the parents regarding broad parenting issues (including the question of the parent with whom N should live, and access or contact arrangements) should not be determined by the application of Australian "domestic law". It has not been suggested what "other" law should be applied. When all is said and done, and in practical terms, the distinction which the father attempts to draw between the two forms of proceedings is a distinction without a difference. So alike are they that Bennett J said in Peddar at [52] that proceedings for access under the Regulations are proceedings under FLA Part VII.
Conclusion
102I have given the SCA leave to withdraw from the proceedings. The father does not have standing to pursue the Convention access application in his own right. If I am wrong in that regard, then this Court should decline to deal with the Convention access application – which should be dismissed. The WA parenting proceedings provide an appropriate vehicle for this Court to consider and determine the dispute between the parents regarding all aspects of N's parenting. Issues such as the most appropriate forum for determining the parenting dispute and the status of the Polish orders can be raised and considered in the context of the WA parenting proceedings. In that regard, I note the recent Full Court decision in Pascarl & Oxley [2013] FamCAFC 47 at [86], where it was confirmed that forum non conveniens principles are not relevant to "parenting cases which involve a foreign element". The principles to be applied in such cases –
... will be determined by the nature of the application before the court. Where an application is made under the provisions of the [FLA] which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
103The father has every right to participate in the WA parenting proceedings. He should now do so.
Orders
104I have adjourned the Convention access application to 18 March 2014. In the light of these Reasons, I propose to stay the Convention access application until that time in order to give the father the opportunity to reconsider his involvement in the WA parenting proceedings. The Convention access application will then be formally dismissed.
105I shall deal with the WA parenting proceedings on 18 March 2014. I will consider any application the father is minded to make (as part of those proceedings) at that time. Similarly, I will consider any application the mother is minded to make (as part of the WA parenting proceedings) at that time. If the father elects not to participate in the WA parenting proceedings, then it is likely that the mother will seek final parenting orders on 18 March 2014. If the father elects to participate in the WA parenting proceedings, then it is likely that I will make appropriate interim and/or procedural orders with a view to facilitating the resolution of the parties' parenting dispute.
106Shortly before the completion of these Reasons, the Court received a letter from the father dated 2 January 2014. The letter attaches copies of documents provided to the Court on previous occasions. It also attaches some additional documents (such as a copy of the SCA's submissions upon which the father has written comments). There is nothing that is both fresh and significant in the letter and its attachments. Relevantly, they do not affect the conclusions I have reached in these Reasons.
107As indicated above, the Convention access application is to be stayed until 18 March 2014. It will then be dismissed. It follows that the Convention access application is no longer on foot in any relevant sense, and the Principal Registrar of this Court will be directed not to receive any further documents or submissions from the father in relation to it. In that respect, the father should understand that, to use a legal colloquialism, I am not prepared to sit on appeal from myself. On the other hand, the father's ordinary rights of appeal remain. The orders that I propose to make pursuant to these Reasons comprise final orders to the extent that they provide for the immediate stay and ultimate dismissal of the Convention access application. They comprise interim or interlocutory orders to the extent that they provide for the adjournment of the WA parenting proceedings to 18 March 2014.
108I propose to make the following orders:
1.The Form 4 Application under the Family Law (Child Abduction Convention) Regulations (Cth) filed 4 July 2013 ("the Convention proceedings") be stayed until 10.00 am on 18 March 2013, and thereafter be dismissed forthwith – without further notice to the father or the mother.
2.The mother's Form 1 Application for Final Orders filed 13 April 2010 ("the substantive proceedings") be listed for directions on 18 March 2014 at 10.00 am.
3.Notwithstanding all previous orders or directions made in the Convention proceedings or the substantive proceedings, and notwithstanding the father's non-compliance with the Family Law Rules 2004 or this Court's Case Management Guidelines, the father have leave to file a Form 1A Response to an Application for Final Orders, together with a supporting affidavit, by not later than 4.00 pm on 3 March 2014.
I certify that the preceding [108] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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