COMMISSIONER, WESTERN AUSTRALIA POLICE and [SENEVIRATNE]
[2010] FCWA 93
•10 SEPTEMBER 2010
[2010] FCWA 93
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 |
| LOCATION | : | PERTH |
| CITATION | : | COMMISSIONER, WESTERN AUSTRALIA POLICE and [SENEVIRATNE] [2010] FCWA 93 |
| CORAM | : MONCRIEFF J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
[KUSUM SENEVIRATNE]
Respondent/Mother
Catchwords:
CHILD ABDUCTION - Hague Convention - "rights of custody"
Legislation:
Family Law Act 1975
Family Law (Child Abduction Convention) Regulations 1986
| Category: | Not Reportable |
Representation:
Counsel:
| Applicant | : | Ms I Petersen |
| Respondent | : | Mr M Nicholls QC |
[2010] FCWA 93
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Kavanagh & Padfield Legal |
Case(s) referred to in judgment(s):
C v C (Abductions Rights of Custody) (C.A.) [1989] 1 W.L.R. 654
Department of Community Services v Crowe (1996) 135 FLR 433
DP v Commonwealth Central Authority (2001) 206 CLR 401
| DP v Commonwealth Central Authority; Department of Community Services | (2001) 206 |
CLR 401
Fairfax v Ireton [2009] 1 NZLR 540
MW v Director-General of the Department of Community Services (2008) 82 ALJR 629
Re D (a child) (abduction rights of custody) [2007] 1 All ER 783
Re F (Child Abduction Custody Rights Abroad) [1995] 2 FLR 31
Sharmain & Director-General, Department of Community Services (2009) FLC 93-396
[2010] FCWA 93
1 [Yathukulan Seneviratne Richardson] is the four year old child of [Sanjeev
Richardson] (“the father”) and [Kusum Seneviratne] (“the mother”). Yathukulan is presently residing in Australia with his mother and orders have been sought under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) which incorporated into Australian domestic law the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) to which Australia is a signatory.
2 The Central Authority seeks orders that Yathukulan be returned to Sri Lanka where the father resides. Sri Lanka is also a party to the Hague Convention.
3 In considering such applications the Court must apply regulation 16 of the
Regulations which provides as follows:
“16(1) [When court must order child’s return]
If:
(a) an application for a return order for a child is made; and (b)
the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c)
the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
16(1A) [Wrongful removal or retention]
For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and (b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and (d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e)
at the time of the child's removal or retention, the person, institution or other body:
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(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
16(2) [Application more than one year after removal: when court
must order child’s return]
If:
(a) an application for a return order for a child is made; and (b)
the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)
the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
16(3) [When court may refuse to order child’s return]
A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child's return:
(i)
was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to
physical or psychological harm or otherwise
place the child in an intolerable situation; or(c) each of the following applies:
(i) the child objects to being returned;
(ii) the child's objection shows a strength of feeling beyond the mere expression of a
preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
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(d)
the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
16(4) [Information on child’s social background]
For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
16(5) [Where court not precluded from ordering child’s return]
The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.”
4 During the course of the proceedings before me it became apparent that the
resolution of this matter came down to discrete issues, namely, the determination as to whether or not the father had a right of custody within the meaning of the regulations and whether or not he was exercising that right.
Background to the application
5 The father and the mother were both born in Sri Lanka and married in Colombo
[in] 2004.
6 It appears the marriage between them was not a happy one and was short lived.
In about August 2004 the mother left the matrimonial home to reside with her parents. It appears that the parties reconciled for a short period, with the mother again leaving the matrimonial home in or about April 2005. The parties reconciled again in May
2005, with the mother leaving the matrimonial home again to reside at her parents’ home on 3 January 2006. In April 2006 the mother’s parents and brothers removed the mother’s belongings from the matrimonial home and the mother, it would seem, attempted to cease all contact with the father.
7 Yathukulan was born [in] July 2006 at a time when the parties had been separated for some six months.
8 On 9 February 2007 the father commenced proceedings for divorce and full
legal and physical custody of Yathukulan in the District Court of Colombo. The
mother opposed the proceedings, seeking custody of Yathukulan herself.9 On 18 December 2008 the first of several interim orders was made in the District
Court of Colombo which provided interim access to the father.
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10 On 8 May 2009 the mother and Yathukulan left Sri Lanka without the father’s permission and, it is alleged, using a passport obtained by fraudulent means.
11 On 10 September 2009 the District Court of Colombo entered a decree nisi for
the dissolution of the parties’ marriage and made orders granting the father legal and
physical custody of Yathukulan.
12 In the application in support of the orders for the return of the child the Central
Authority pleads:
“The child is habitually resident in Sri Lanka and Sanjeev Richardson is the father of the child, the parents were married at the time of unlawful removal of the child from Sri Lanka, and the father has rights of custody by operation of the law of Sri Lanka.
…
The child was removed from Sri Lanka to Australia by the mother without the father’s consent on or about 8 May 2009. The mother was able to obtain a passport for the child by producing a forged death certificate of the father.”
13 In the application executed by the father on 17 February 2010 in Colombo in support of the application, he states the “District Court of Colombo granted me the legal and physical custody of my son Yathukulan Seneviratne Richardson in Case Number DC1234D” and attaches to his application a copy of the judgment of the District Court dated [in] September 2009, some four months after the date of the removal of the child from Sri Lanka. In an affidavit affirmed by the father on 21
March 2010 and annexed to his application the father asserts:
“15. I state that my said child was habitually resident in Sri Lanka, which is a country party to Hague Convention (sic), immediately prior to his removal and he was under the age of 16. Further I state in view of the judgment given in the said case bearing No 1234/D, I am the only parent of the said child whose legal and physical custody has been granted (sic).
16. I further state that even prior to Court granting legal and physical custody of the said child as aforesaid, I as the father of the child was exercising rights of his custody by operation of law.”
14 It is the status of the father’s rights at the time of removal that is pivotal to this
matter.
15 Mr Nicholls, one of her Majesty’s Counsel, on behalf of the wife, quite properly submits that the order made in September 2009 is irrelevant for the purposes of my consideration of these proceedings for as the regulations clearly stipulate, the relevant time is the time “immediately before the child’s removal” rather than any subsequent time.
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16 Accordingly, I must make a determination as to what, if any, were the rights of
custody of the father immediately prior to the child’s removal to Australia.
17 The argument advanced on behalf of the mother is summarised in the
submissions filed by Mr Nicholls QC as follows:
“The mother’s position is that at the time of [Yathukulan’s] removal the father either had no rights of custody, or if he had, he was unable to exercise them because his rights in respect of [Yathukulan] had been restricted by the District Court in Colombo to access rights, and as a consequence his other custodial rights had either been extinguished or suspended.”
18 Article 5 of the Convention describes rights of custody and access as follows:
“For the purposes of this Convention –
(a) ‘Rights of custody’ shall include rights relating to the care of the person of the child and in particular, the right to determine the child’s place of residence;
(b) ‘Rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
19 For the purposes of regulations, rights of custody are defined as follows:
“4 Meaning of rights of custody
4(1) [‘rights of custody’] For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)
the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)
rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
4(2) [Care of the person of the child] For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
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(3) [How rights of custody may arise] For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or (b) by reason of a judicial or administrative decision; or
(c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.”
20 For the purposes of the regulations, a right of access to a child is defined by the
incorporation of paragraph 111B(4)(d) of the Family Law Act 1975 (Cth) (“the Act”)
which provides:
“Subject to any order of a court for the time being enforced, 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.”
21 Section 111B of the Act, which is the enabling section for the making of the regulation, also defines rights of custody in sub-section 111B(4) as follows:
“For the purposes of the Convention:
(a)
each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and
(b) subject to any order of a court for the time being enforced, a
person:
(i) with whom a child is to live under a parenting order; or
(ii) who has parental responsibility for a child under a parenting order;
should be regarded as having rights of custody in respect of the
child; and
(c)
subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-
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to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child.”
22 Whilst the section purports to define rights of custody for the purposes of the interpretation of Australian law by another Convention country, it is of assistance to consider the way in which Australia, as a contracting State, has legislated to prescribe what creates a right of custody and what extinguishes that right.
23 The plurality in MW v Director-General of the Department of Community Services (2008) 82 ALJR 629 held at paragraph 73 that the determination of rights of custody is a straight forward question of law:
“73. Insofar as matters of foreign law are involved in determination of an application under the Regulations, observations of the Court of Appeals for the Third Circuit (made respecting the role of the United States District Court in cases of alleged wrongful removal under Art 3 of the Convention) are in point. In In re Application of Adan that Court said:
‘The duty of the host forum – in this case, the District Court – to make a threshold determination of custody rights under the country of origin’s laws is not novel; indeed, it comports with the federal courts’ frequent responsibility to examine the law and choice of law rules of another forum to determine the rights and duties of litigants. Such a determination does not, of course, bind the other forum to reach the same result in future litigation, nor does it run afoul of comity concerns. Article 3's requirement that the host country determine custody rights under the country of origin's law to ascertain whether removal was ‘wrongful’, and therefore whether the Convention applies, is a straightforward question of law of the sort federal courts routinely encounter, and thus presents no unusual burden on the competence of our courts’.”
24 I will consider Sri Lankan custodial principles later in these reasons.
25 Firstly, I wish to address other Courts’ interpretations and discussions on “rights
of custody”.
26 In Sharmain & Director-General, Department of Community Services (2009) FLC 93-396, their Honours Boland, O’Ryan and Ryan JJ considered at paragraph 75 the High Court’s determination of “rights of custody” in DP v Commonwealth Central Authority; Department of Community Services (2001) 206 CLR 401:
“For the purpose of the Regulations, the question of whether rights of custody exist is to be determined by reference to the point immediately before the removal or retention of the child. In DP v Commonwealth Central Authority; Department of Community Services (supra), Gaudron,
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Gummow and Hayne JJ considered the issue of what constitutes ‘rights of custody’ for the purposes of the Regulations and said [at 412]:
‘Several aspects of the Regulations must be noted. Regulation 14 provides for applications to a court in relation to a child who is removed from a Convention country to, or retained in, Australia. The meaning of references to ‘removal’ and ‘retention’ is given in reg 3 and in each case it turns on a breach of the ‘rights of custody’ in relation to the child if, at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention. The rights of custody to which reg 3 refers are rights ‘of a person, an institution or another body’. A person, an institution or a body has rights of custody if rights of custody in relation to the child are attributed to the relevant person, institution or body, either jointly or alone, under a law in force in the country in which the child was habitually resident immediately before removal or retention (reg 4(1)). The rights are further identified by reg 4. They ‘include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child’ (reg 4(2)). They may arise by operation of law, by reason of a judicial or administrative decision, or by reason of an agreement (reg 4(3))’.”
27 Their Honours went on [at 412] to state clearly that neither a court order nor any
form of judicial decision is necessary in order to establish that one parent had custody
rights over the child at the time of removal:
“Nothing in the definitions of ‘removal’ and ‘retention’ or of ‘rights of custody’ requires that, before removal or retention, there shall have been any judicial decision about rights of custody and nothing in those definitions requires that at some later time there be any application to a court to determine who shall have future rights of custody in relation to the child. All that the definitions require is that by the law of the place of habitual residence immediately before removal or retention, the child's removal to Australia or the child's retention in Australia is in breach of the rights of custody of some person, institution or body. Often enough, that will be so where, by operation of the law of the place of habitual residence, both parents have joint rights of custody of children of their union. Sometimes, before any application to the courts in Australia, the parent who has not removed or retained the child will have approached the courts of the place of habitual residence for interim or permanent orders about custody of the child but that will not always be so.”
28 See also Re F (Child Abduction: Custody Rights Abroad) [1995] 2 FLR 31 per
Butler-Sloss LJ.
29 In Re D (a child) (abduction: rights of custody) [2007] 1 All ER 783 the House of Lords determined an appeal by a mother that the child be returned to Romania. Baroness Hale considered in detail the concept of “rights of custody” at paragraphs 24 and following:
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24. The world would be a simpler place if the convention had provided that all removal or retention of a child outside the country where he or she is habitually resident without the consent of the other parent or the authority of a court is wrongful. But it does not. The convention recognises that not all parents have the right to demand the automatic return of children who have been taken away without their consent. It does so by providing that the removal or retention of a child is only wrongful under art 3 if it is—‘in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention
…’
These rights may arise ‘by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State’. In addition, those rights must actually have been being exercised at the time (or would have been had it not been for the wrongful removal). Article
5(a) provides that—
‘rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’
25. The convention also obliges, in art 21, the central authorities to assist a ‘left behind’ parent in realising his or her ‘rights of access’, not by securing summary return to the home country, but through promoting their peaceful enjoyment, removing obstacles to their exercise, and initiating or assisting the initiation of proceedings to protect them. Article 5(b) provides that “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’. Thus it was envisaged that the right to have the child to stay away from his home might still amount to ‘rights of access’ rather than ‘rights of custody’. It is quite clear from the explanatory report of Professor Elisa Pérez-Vera (April 1981) that the original parties to the convention drew a deliberate distinction between rights of custody and rights of access and did not intend that mere rights of access should entitle a parent to demand the summary return of the child. As Professor Pérez-Vera pointed out (para 65), such an approach would ultimately lead to ‘the substitution of the holders of one type of right by those who held the other.
26. Nevertheless it is common ground between all the parties to this case that they are not mutually exclusive concepts. A person may have both rights of access and rights of custody. The question is, do the rights possessed under the law of the home country by the parent who does not have the day-to-day care of the child amount to rights of custody or do they not? States’ laws differ widely in how they look upon parental rights. They may regard the whole
[2010] FCWA 93
bundle of rights and responsibilities which the law attributes to parents as a cake which can be sliced up between the parents: one parent having the custody slice, with the package of rights which that entails, and the other having the access slice, with the different package of rights which that entails. This is by no means an unusual way of looking at the matter. Alternatively, the state may regard the whole bundle of parental rights and responsibilities as inhering, and continuing to inhere, in both parents save to the extent that they are removed or qualified by the necessary effect of a court order or an enforceable agreement between them...
27. As Professor Pérez-Vera points out (para 83), following a long- established tradition of the Hague Conference, the convention does not define the legal concepts used by it. However, art 5 does make clear the sense in which the concepts of custody and access rights are used, ‘since an incorrect interpretation of their meaning would risk compromising the Convention's objects’. Custody relates to the care of the child’s person rather than his property. It is a narrower concept than that of ‘protection of minors’ used elsewhere. It may, however, be jointly held. Access includes the right to ‘residential access’ even across national boundaries.
28. In the absence of a supranational body to define and refine these autonomous terms, member states must strive for consistent practice—not in the content of their domestic laws but in the effect that they give to the particular features of one another’s laws. As Lord Browne-Wilkinson said in Re H and ors (minors) (abduction: acquiescence) [1997] 2 All ER 225 at 234, [1998] AC 72 at 87 (albeit in the context of the meaning to be given to ‘acquiesced’ in art 13(a) of the convention):
‘An international convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The convention must have the same meaning and effect under the laws of all contracting states.’
In that case, therefore, English concepts and English law rules about the meaning of acquiescence could have no direct relevance to the interpretation of the convention. We must be equally prepared to resist projecting the view taken in English law of the rights of parents onto the convention concepts as they apply to the laws of other member states which may take a different view.
29. There is no problem when return is requested by the parent with the right to the day-to-day care of the child—or in English terms the parent with whom it has been determined that the child is to live. The problem is with the characterisation of the other parent’s rights. If these amount to joint custody, there is equally no problem. The main debate has been over the effect of what are sometimes
[2010] FCWA 93
referred to as ‘travel restrictions’—either a court order prohibiting the removal of the child from the home country or a ‘right of veto’ giving one parent, who may or may not also have rights of access, the right to insist that the other parent does not remove the child from the home country without his or her consent or a court order.
30. The internal position in English and Scottish law is clear. Parents who share parental responsibility (that is all married parents and increasing numbers of unmarried parents) each have all the rights and responsibilities of parents. They retain those rights subject only to the practical limitations of any court order and can exercise them independently of one another unless this is inconsistent with a court order. While a residence order is in force, no person may remove the child from the United Kingdom without the written consent of each person with parental authority or the leave of a court (see s
13(1)(b) of the Children Act 1989). In England, the person with the benefit of the residence order may remove the child for less than one month (see s 13(2)). Even if there is no residence order, it is a criminal offence for a parent to remove a child from the United Kingdom without the consent of each person with parental responsibility or the leave of a court (see ss 1 and 6 of the Child Abduction Act 1984; in England with the one-month exception for people with the benefit of a residence order).
31. But the mere fact that English and Scottish parents enjoy such rights of veto does not of itself mean that they enjoy ‘rights of custody’ within the meaning of the convention. Hitherto, however, both in England and Scotland, the courts have regarded travel restrictions as giving rise to rights of custody. As long ago as C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER 465, [1989] 1 WLR 654, the Court of Appeal held that a court order prohibiting either parent from removing a child from Australia without the other’s consent gave the other parent rights of custody under the convention. Lord Donaldson of Lymington MR observed ([1989] 2 All ER 465 at 473, [1989] 1 WLR 654 at 664) that the right to determine the child’s place of residence ‘may be specific, the right to decide that it shall live at a particular address, or it may be general, eg “within the Commonwealth of Australia’. In Re W (a minor) (unmarried father), Re B (a minor) (unmarried father) [1998] 2 FCR 549, [1999] Fam 1, I applied the same approach to rights of veto arising by operation of law. Both cases were relied upon by the Inner House of the Court of Session in J, Petitioner [2005] CSIH 36, 2005 GWD 15-251, where it was held that the right of veto enjoyed, by virtue of s 2(3) and (6) of the Children (Scotland) Act 1995, by a parent with the right to contact amounted to ‘rights of custody’ under the convention.
32. Mr James Turner QC, on behalf of the mother, has questioned whether a mere right of veto should amount to ‘rights of custody’. The reasoning is simple. If rights of custody ‘shall include’ the
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right to determine the child’s place of residence, it is not enough that they include the right to determine for the time being the country where the child lives—it must mean the right to determine where the child actually lives. The convention envisages a compendium of more than one right. Furthermore, the purpose of the right to determine the country where the child lives is simply to facilitate the exercise of the right of access—and that does not attract the right to demand summary return to the home country. Indeed, a person possessing a right of veto may have no access rights at all; whereas a person having access rights may have no veto right. It would be surprising if a parent who enjoyed a close and continuing relationship with his child might have no rights of custody whereas a parent who has not seen his child for years might do so.
33. Mr Turner is able to cite other jurisdictions in the common law world which have taken this view. In Croll v Croll (2000) 229 F 3d 133, a majority of the United States Court of Appeals for the Second Circuit held that a ne exeat clause in a Hong Kong custody agreement giving custody, care and control to the mother did not give rights of custody to the father. That decision was followed by the Court of Appeals for the Ninth Circuit in Gonzalez v Gutierrez (2002) 311 F 3d 942; and by the Court of Appeals for the Fourth Circuit in Fawcett v McRoberts (2003) 326 F 3d 491 (referred to without comment but distinguished in Bader v Kramer (2006) 445 F 3d 346). The majority in Croll v Croll relied on the deliberate distinction drawn in the convention between rights of custody and rights of access, the lack of international consensus on the issue, and the published views of Professor AE Anton, chair of the Hague Conference Commission which had drafted the convention ((1981) 30 ICLQ 537, p 546).
34. The majority in Croll v Croll were able to point to two decisions in the Supreme Court of Canada to demonstrate a lack of international consensus. In Thomson v Thomson [1994] 3 SCR 551, the court had held that removal in breach of a ne exeat clause in an interim custody order was in breach of rights of custody held by the court, in order to preserve its jurisdiction to make a final determination, but expressed the view that such a clause in a final order would not give the other parent rights of custody. In DS v VW [1996] 2 SCR
108, Thomson v Thomson was relied upon a fortiori where any prohibition upon removal had been implicit in the custody order made in the United States.
35. However, the United States Court of Appeals for the Eleventh Circuit in Furnes v Reeves (2004) 362 F 3d 702 rejected the reasoning of the majority in Croll v Croll in preference for the dissenting views of Sotomayor CJ. They pointed out that to order return of the child did not convert the other parent’s rights of access into rights of custody, because there was no obligation to return the
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child to that other parent. The object was to maintain the status quo and the jurisdiction of the home country over any disputes. The observations in both Canadian cases were obiter. Apart from them, known opinion elsewhere in the common law world was united. Thus the full court of the Family Court of Australia, in JR v MR (22 May 1991, unreported), had followed the English decision in C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER
465, [1989] 1 WLR 654, as did Lindenmayer J at first instance in Director General, Dept of Families, Youth and Community Care v Hobbs [1999] FamCA 2059. The Constitutional Court of South Africa had reached the same result in Sonderup v Tondelli 2001 (1) SA 1171. The Israeli High Court, in Foxman v Foxman (28
October 1992, unreported) had also held that rights of custody should include cases where parental consent is required to remove the child from the country of residence. To these might have been added New Zealand, which has gone further still and held that rights of access can in themselves amount to ‘'rights of custody’: G v B [1995] NZFLR 49; D v C [1999] NZFLR 97; see also Hunter v Murrow [2005] EWCA Civ 976, [2005] 3 FCR 1 (see [42], below).
36. I acknowledge the force of Mr Turner’s argument, especially when viewed against the original paradigm case of abduction by a non- custodial parent from the custodial primary carer. It is also the case that some parents who possess a right of veto have in fact very limited contact—if any—with their children, so that to force a child to return to the home country simply for the sake of obtaining permission to leave which will almost certainly be granted seems heavy handed. But the circumstances of families are infinitely various. It is an object of the convention to enable such decisions to be taken in the courts of the home country where those circumstances can (in most cases) better be investigated and evaluated. It is not for the courts of the requested state to start making value judgments about the merits of the case, save to the very limited extent that the convention permits this. As far as the convention is concerned, a person either has rights of custody or he does not—the quality of his relationship with the child is not in point. It would, at the very least, be an odd result if a convention designed to secure the summary return of children wrongfully removed from their home countries were not to result in the return of children whose removal had clearly been in breach of the laws, court orders or enforceable agreements in the home country.
37. Therefore, in common with the understanding of the English and Scottish courts hitherto, and with what appears to be the majority of the common law world, I would hold that a right of veto does amount to ‘rights of custody’ within the meaning of art 5(a). I see no good reason to distinguish the court’s right of veto, which was recognised as ‘rights of custody’ by this House in Re H (child abduction: rights of custody) [2000] 2 All ER 1, [2000] 2 AC 291,
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from a parental right of veto, whether the latter arises by court
order, agreement or operation of law.38. I would not, however, go so far as to say that a parent's potential right of veto could amount to ‘rights of custody’. In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child’s upbringing, including relocation abroad, this should not amount to ‘rights of custody’. To hold otherwise would be to remove the distinction between ‘rights of custody’ and ‘rights of access’ altogether. It would be also inconsistent with the decision of this House in C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961, [1990] 2 AC 562. There an unmarried father had no parental rights or responsibility unless and until a court gave him some; but he did, of course, have the right to go to court to seek such an order. This was held not to amount to ‘rights of custody’ within the meaning of art
5(a). Nor could a subsequent order grant him such rights if by then
the child's habitual residence had been changed.
ARTICLE 15
39. Article 3 makes it quite clear that, however wrongful the removal might be in the eyes of the English or Scottish laws of parental responsibility, what matters is whether it is ‘in breach of rights of custody attributed to a person . . . under the law of the state in which the child was habitually resident immediately before . . .’ Plainly, therefore, the first question is: ‘What rights does that person have under the law of the home country?’ The second question is: ‘Are those rights “rights of custody” within the meaning of the convention?’ ...”
The law in Sri Lanka
30 The Central Authority has filed affidavits of Dulani Nimesha Nicholas, an Attorney practising in Sri Lanka, and Emil Perera, an Attorney with a legal practice of 50 years.
31 Mr Nicholas deposes as follows:
“6. Under our common law, during the subsistence of marriage, the father has a preferential right of custody to the child. However, the Court, as the Upper Guardian of Minors, exercises a supervisory jurisdiction over minors. The Court will accordingly interfere with a father’s preferential right to custody where it is necessary in order to give effect to the best interests of the child.
A true copy of pages 59 to 68 of Parental and State Responsibility for Children by Prof Sharya Scharenguivel (Stamford Lake,
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Colombo: 2005) which deal with custody rights under the Sri
Lankan Common Law is annexed hereto and marked as ‘X2’.7. Thus, in the leading case of Madulawathie v Wilpus (1967) 70 NLR 90, the Supreme Court held that where a mother seeks custody of a child, the burden is on her to prove that it is in the interests of the child that the father should be deprived of custody. This approach has been followed in the cases of Rajaluxmi v Sivananda Lyer (1972) 76 NLR 572 and in Karunawathie v Wijesuriya [1980] 2 Sri LR 14.”
32 The deponent annexes copies of the relevant authorities.
33 The authorities and the analysis of the authorities by Professor Scharenguivel appear clear in the conclusion that a mother seeking to secure an order for custody carries the burden of proving that the best interests of the child require that the father be deprived of custody and absent the discharge of that burden by the mother, the father was entitled to custody.
34 The decision of Karunawathie v Wijesuriya (supra) of the Sri Lankan Court of
Appeal reaffirms the position as summarised in the head-note as follows:
“It is the Roman Dutch law which governs the principles applicable to the custody of minor children in this country and where the bond of matrimony subsists, the father has the preferential right to custody of the child subject to a paramount consideration namely, the welfare of the child. The burden of satisfying the court that such consideration arises would be on the mother. As no such case has been made out by the petitioner in this case, the father (1st respondent) would be entitled to custody.”
35 Mr Perera, in his affidavit, referring to the same authorities as Mr Nicholas,
takes the matter further where, in paragraph 9, he states:
“9. I state that under the system of common law applicable to the parties (Roman Dutch law) the right of custody of minor children includes legal custody and physical custody. Legal custody would encompass the right to consent to the medical treatment of the child and to decide in matters pertaining to the child’s education. Physical custody would include the right to physical possession of the child and to control the day to day life of the child.
10. Therefore, custody is more than simply who the child lives with and connotes a broader concept of parental responsibility. It would appear that the right to determine the child’s place of residence would be an aspect of legal custody as it is not a routine day to day matter.
11. In view of the practice here in Sri Lanka when a dispute arises over custody of a minor, although the father has a preferential right to
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custody by operation of the law, the father too will institute a legal suite in a relevant court against the spouse seeking a court order or a judgment in relation to the custody of the minor child.”
36 Mr Perera effectively states that the position in Sri Lanka is not dissimilar to that which exists under domestic Australian law where distinctions have previously been drawn between concepts of guardianship and custody, custody and access and more recently, parental responsibility and residence.
37 Mr Perera goes on to depose at paragraph 14:
“14. Since both the father and the mother of the said minor child are seeking the custody of the said minor child aforesaid, the court until the final order/judgment entered in the said case, as an interim settlement, ordered [Ms Seneviratne] to hand over the said child, [Yathukulan Seneviratne Richardson], to Mr Richardson from
10:00 am to 5:00 pm every Sunday.
…
15. This order has been made by way of an interim order in order to avoid any unnecessary disputes over the access to the minor child until the final judgment is entered and this order is only an arrangement regarding the access to the child. However, it can be stated that this settlement does not affect the preferential right pertaining to the child’s custody that Mr Richardson has by operation of the natural law of the minor child.”
38 And at paragraph 18:
“18. Therefore, although the mother exercised physical custody of the child, this was by consent of the father. Furthermore, the father continued to have the legal custody of the child, which would include the right to decide on the child’s travel overseas, since this would not be a day to day matter that would be caught up within the scope of physical custody. It would follow that the father could veto the relocation of the child to another country.”
39 As Mr Nicholls QC for the mother quite correctly points out, no authority is
offered in support of the proposition contained in paragraph 18 of Mr Perera’s
affidavit.
40 The mother’s position is that the only right that the father had was a right of access and that right arose pursuant to orders made on 18 December 2008.
41 The parties separated some six months prior to the birth of Yathukulan, their marriage being one of relatively short duration with various periods of cohabitation and separation. However since January 2006 the parties have not cohabitated. They were not divorced at the date of the removal of the child.
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42 This is not a situation whereby two parents separated and the father, who has
preferential rights of custody of the child, acquiesced to the mother having physical
custody of him. At the time of separation the child was not born.
43 Mr Nicholls QC submits that the interim order, giving access rights to the father, extinguished any custodial rights that he may have. However in a situation where the parties never cohabitated during the child’s life time, distinction must surely be drawn between this set of events and the situation where parents separated after the birth of their child. The interim orders gave the father access to his son, something which prior to the existence of the order he did not have because the child had been in the mother’s company since his birth. It would be a most obscure set of circumstances if, following the birth of the parties child, the father demanded and enforced his preferential right of custody over a newly born baby, taking him away from his mother, with whom so much literature persuades us, he has formed a primary attachment.
44 The orders made by the Sri Lankan Court on 18 December 2008 were interim orders only, pending the final determination in relation to the parties’ child. Both parties were actively involved in litigation in the Sri Lankan judicial system and the mother can not be said to have been unaware of the proceedings relating to the child’s custody.
The source, if any, of the father’s rights of custody
45 I now turn to whether the father had rights of custody under the law of Sri
Lanka.
46 As correctly submitted by Mr Nicholls QC, in determining rights of custody in Hague Convention matters, the Court must have regard to the law at the relevant time in the Convention country from which the child was removed; see Department of Community Services v Crowe (1996) 135 FLR 433.
47 Although the Sri Lankan Courts have given final determination as to the custody of the child, I must disregard this in determining the father’s rights of custody.
48 The child was removed from Sri Lanka [in] May 2009, and it is the rights that
the father had under Sri Lankan laws in regard to his child as at this date that I must
first consider.
49 Regulation 4(3) provides that rights of custody may arise by operation of law, jurisdiction or administrative decision having effect under a law in force in Australia or a Convention country. In Re O [1997] 2 Fam LR (Eng) 702, Cazalet J said the expression “may arise” indicates that rights of custody can arise in other circumstances as well.
50 Le Poer Trench J in Docs and Raddison [2007] FamCA 1702 considered the definition of rights of custody:
“35. In Australia, the Full Court of the Family Court has made it clear that the notion of “rights of custody” is to be interpreted broadly and determined with reference to the statutory definition in
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regulation 4 and not domestic law: see McCall and McCall; State Central Authority (Applicant); Attorney-General (Cth) (Intervener) (1995) FLC 92-551; see also Re B (a Minor) [1994] 2 Fam LR (Eng) 249 at p 257; Re F [1995] 2 Fam LR (Eng) 31 at p 41 per Millett LJ; Re H [2000] 1 Fam LR (Eng) 374 at p 378.
36. In interpreting Regulation 4, it is pertinent to note the comments of Millett LJ in the English case of Re F [1995] 2 Fam LR (Eng) 31 at p 41:
‘The Convention is an International Convention and it is to be hoped that its terms will receive a similar interpretation in all the Contracting States. It is to be construed broadly and in accordance with its purpose without attributing to any of its terms a specialist meaning which it may have under domestic law’.
37. Providing an insight into how the phrase “rights of custody” is to be interpreted in light of the overall purpose of the convention are the words of Waite LJ of the Court of Appeal in Re B (A Minor)(Abduction) (1994) 2 FLR 249 at 260, which was cited with approval by Kay J in Department of Health and Community Services, State Central Authority and Casse (1995) 19 Fam LR 474 at 482:
‘The purposes of the Hague Convention were, in part at least, humanitarian. The objective is to spare children already suffering the effects of breakdown in their parents’ relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression
‘rights of custody’ when used in the Convention therefore needs to be construed in the sense that will best accord with that objective. In most cases, that will involve giving the terms the widest sense possible’.”
51 The background of the Hague Convention is an important context to consider in light of applications for the return of wrongfully removed children. Kirby J in the High Court of Australia, the English Court of Appeal and the New Zealand High Court have all referred to the policy of the Convention in their judgments on applications for the return of a child. I will consider this below.
52 In MW v v Director-General of the Department of Community Services (supra), the plurality referred to the judgment of La Forest J in the Canadian case of Thomson v Thomson [1994] 3 SCR 551. His Honour in that judgement considered the background of the Hague Convention:
“Background to the Hague Convention
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By the mid-1970s, the problem of international parental child abduction had reached such proportions that the Commonwealth Law Ministers described it as being of ‘immense social importance and requiring concrete early action’ … At a meeting of a Special Commission of the Hague Conference on Private International Law held in January, 1976, the Expert of Canada proposed that the Hague Conference undertake the preparation of an international treaty dealing with the problem of the abduction of children by one of their parents. The proposal was received with interest, and the Hague Conference Secretariat proceeded with a study of the legal and social aspects of the problem. A 1978 international study conducted by the Permanent Bureau of the Hague Conference on Private International Law was informed of the following reported cases of abductions: Australia (10), Belgium (15), Denmark (8), France (75); the scale of the problem in the United Kingdom was indicated by the fact that in a 12-month period the Home Office was asked to take precautions in airports and ports in 691 cases involving 69 different countries…Though…these numbers were relatively small, the risk of harm to the child and the certainty of distress to the parents made it imperative that governments coordinate their efforts to prevent this evil. At all events, the numbers showed signs of increasing. For example, between 1982 and 1984 (the United States did not implement the treaty until 1988), the number of American citizens seeking the return of abducted children from abroad doubled, and in 1986 there were 276 reported cases of parental child abduction in the United States.
In March, 1979, the Conference convened a Special Commission to examine the matter and to consider possible solutions. At a further meeting of the Special Commission in November, 1979, a preliminary draft Convention was prepared which formed the basis for discussion at the Fourteenth Session of the Hague Conference in October, 1980.
At that session representatives of 28 states prepared a draft Convention on the Civil Aspects of International Child Abduction which the Conference adopted by a unanimous vote on October 24, 1980. The Convention was immediately made available for signature by states, and Canada was one of four states to sign it on October 25, 1980. Scotland implemented the Convention in 1986.”
53 Australia became a signatory to the Convention and implemented it in 1986; the
Convention came into operation on 1 January 1987. Sri Lanka implemented the
Convention on 1 January 2003.
54 Kirby J in DP v Commonwealth Central Authority (2001) 206 CLR 401 at paragraph 155 stated that:
“155. Unless Australian courts, including this Court, uphold the spirit and the letter of the Convention as it is rendered part of Australian law by the Regulations, a large international enterprise of great importance for the welfare of children generally will be frustrated in the case of this country. Because Australia, more than most other countries, is a land with many immigrants, derived from
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virtually every country on earth, well served by international air transport, it is a major user of the Convention scheme. Many mothers, fathers and children are dependent upon the effective implementation of the Convention for protection when children are the victims of international child abduction and retention. To the extent that Australian courts, including this Court, do not fulfil the expectations expressed in the rigorous language of the Convention and the Regulations, but effectively reserve custody (and residence) decisions to themselves, we should not be surprised if other countries, noting what we do, decline to extend to our courts the kind of reciprocity and mutual respect which the Convention scheme puts in place. And that, most definitely, would not, in aggregate, be in the best interests of children generally and of Australian children in particular.”
55 And in MW v Director-General of the Department of Community Services
(supra) at paragraphs 223 to 228:
“223. The importance of the Convention: Within the international community, specifically within knowledgeable legal circles, concern has been expressed about the non-ratification of the Convention by some states and, where it is ratified, the effective reopening of the merits of custody disputes by foreign courts in proceedings brought to vindicate the Convention.
224. In DP, I attempted to explain that ‘[u]nless Australian courts, including this Court, uphold the spirit and the letter of the Convention as it is rendered part of Australian law by the Regulations, a large international enterprise of great importance for the welfare of children generally will be frustrated in the case of this country’.
225. Unfortunately, in not a single case in which the Convention and Regulations have come before this Court has the Court upheld a decision of the Full Court of the Family Court of Australia ordering the return of an abducted child. This Court corrected a slip in De L v Director-General, NSW Department of Community Services. It required reconsideration by the Full Court of the Family Court. But in JLM v Director-General NSW Department of Community Services, in the DP case and now in the present appeal, the Court has been divided. On each occasion, Gleeson CJ and I have favoured affirming the decisions of the Full Court. However, a majority has found error and set aside the Full Court’s orders for return of the child to the country of habitual residence. In the result, the objective of the Convention has been defeated or delayed. Australian courts have assumed a fact-finding role which, in my view, the Convention, and the Regulations, commit to the courts of the country from which the child was taken.
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226. With all respect to those of a different view, it is important for judicial attitudes to be adjusted in such cases or the Convention (ratified by Australia for high national and international purposes) will lose much of its efficacy so far as the courts of this country are concerned. In the three cases mentioned, it is my opinion that the approach and orders of the Full Court of the Family Court were correct. But Australian judges in the courts below will read and draw inferences from this Court’s majority opinions, which have uniformly been to the contrary effect.
227. At least in De L, DP and JLM, the orders of this Court left open the compliance by Australian authorities with the letter and spirit of the Convention. They did so by recommitting the ultimate decision to the Family Court. In the present appeal, the result of the majority’s orders is that even this will not occur. The specialist Family Court of Australia will be deprived of the function of discharging its duties in respect of the Convention and Regulations, taking into account the legal errors said to have occurred. The invocation of the Convention by the father and the New Zealand Central Authority, in the case of Australia, will simply be terminated.
228 I do not agree with this outcome. When mutuality between convention countries breaks down, the Convention's arrangements are likely to be defeated. Abduction is rewarded. The ultimate victims are the children.”
56 Butler-Sloss L.J. in C v C (Abductions: Rights of Custody) (C.A.) [1989] 1
W.L.R. 654 at 661 held that:
“The mother has to rely on the Australian court for a decision as to the future home of the child. In the circumstances of this case, that is undoubtedly the right court to make that decision. She also has no family in Australia, a broken marriage and now, through her own actions and costly litigation, no assets.
She is responsible for the loss of her home, the spending of the proceeds of sale, the lack of job, car and money. None of these, in the light of the undertakings of the father, can be reasons to block the return of the child. The mother argues that if she does not return and the child is to return without her, there is a grave risk of psychological harm to the child.
The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to
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create a psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent. As Balcombe L.J. said in In re E. (A Minor) ( Abduction) [1989] 1 F.L.R.
135, 142:
‘the whole purpose of this Convention is . . . to ensure that parties do not gain adventitious advantage by either removing a child wrongfully from the country of its usual residence, or, having taken the child, with the agreement of any other party who has custodial rights, to another jurisdiction, then wrongfully to retain that child.’
57 The Auckland High Court in Fairfax v Ireton [2009] 1 NZLR 540 also drew attention to the policy of the convention, citing both Kirby J in MW v Director- General of the Department of Community Services (supra) and the English Court of Appeal in C v C (Abductions: Rights of Custody) (C.A.) (supra).
| 58 | a) by operation of the law in Sri Lanka; or |
I now turn to consider whether the father acquired rights of custody: c) through agreement having legal effect in Sri Lanka .
| a) | Whether the father held rights of custody arising by operation of the law |
59 As I have already stated, the Central Authority filed affidavits of Messers Nicholas and Perera, whose contents were not rebutted, nor alternate evidence on the custodial system in Sri Lanka provided, and which evidence I have proposed to accept.
60 Mr Nicholls QC correctly brought to the Court’s attention the lack of authority for the proposition put forward by Mr Perera, that the physical custody by the mother of the child was only at the consent of the father and that legal custody did not extend to the mother, that is, the father held the power of “veto”.
61 For this proposition (that physical custody amounts legal custody), Mr Nicholls
QC sought to rely on the authority of MW v Director- General, Department of
Community Services (supra).
62 In that case the court order was silent on parental custody of a child and was limited to access time only.
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63 Unlike MW v Director-General, Department of Community Services (supra), where much contention surrounded the relationship of the child’s parents, which is in part determinative of custodial rights in New Zealand, in this case the father has preferential custody rights to the child which can be extinguished by a court order based on the evidence of the mother.
64 An order that is silent cannot be said to deprive one parent, who at law has
preferential rights, in favour of the parent who holds the burden of proving that it is in
the child’s best interests that the father be deprived of custody.
65 As Mr Perera stated in his affidavit, custody in Sri Lanka goes further then a child’s physical presence with a parent. Legal custody connotes a broader concept of parental responsibility and as the interim court order on 18 December 2008 remained silent in relation to custody, it can not be said that the custody of the child was transferred from the father to the mother in silence.
66 As I have already observed in these reasons, the best court to decide the rights of custody of the child are those courts in Sri Lanka, not this Court in Australia.
| b) | Whether there were rights of custody through judicial or administrative decision |
67 Mr Nicholls QC argues that the fact that the order providing the father with
access to the child was an interim order was of no relevance and that the effect of the
order was either to suspend the father’s right of custody, if not, extinguish it.
68 In support of that proposition I am referred to the authority of MW v Director- General, Department of Community Services (supra), a decision by the High Court of Australia.
69 The application involved the consideration of rights of custody of the father of a
child who was born in New Zealand and resident in New Zealand prior to the child’s
removal to Australia.
70 The plurality of the Full Court of the Family Court had held that the removal
was wrongful, concluding that the father of the child had rights of custody in relation
to the child under the law of New Zealand.
71 The distinction between the members of the Full Court, being May and Thackray JJ in the majority and Finn J in dissent, turned upon the question as to whether there was evidence to support a finding of fact that the mother was living with the father of the child as a de facto partner, it being common ground that if the parties were living in a de facto relationship then they were joint guardians of the child and in that event, the father had rights of custody within the meaning of the regulations.
72 Significantly, orders relating to custody and access had been made between the relevant parties in 2000, which regulated the relationship between the parties and the child. Although there were subsequent proceedings, it would seem, between the parties, it appears that the order made on 4 December 2000 was still operative at the time of the removal, and on the basis of those orders the Central Authority argued that the order conferred upon the father rights relating to the care of the child, including
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“the right to determine the place of residence of the child” within the meaning of regulation 4.2 and that the removal of the child had been in breach of those access order rights, which rights amounted to a “right of veto” and were to be treated as rights of the father. The Central Authority then argued that the removal was in breach of those rights of custody held by the New Zealand Family Court which had made the order and thirdly, that the father was said, by operation of the statute law of New Zealand and upon the facts, to have the rights of equal description to rights of custody for the purpose of the Regulations.
73 In paragraph 75 of the joint judgment of the majority (Gummow, Heydon and
Crennan JJ) the court, in considering the first two arguments advanced by the Central
Authority, observed:
“75. The starting point must be the text of the Access Order. This comprised orders as follows:
1. [The child] will be in his father’s care every second weekend (beginning 1-3 December 2000] 5.00pm Friday to 5.00pm Sunday
2. [The child] will be in his father’s care half the school holidays with the Christmas holiday period he is with his father between 4-25 January
3. At all other times [the child] will be in his mother’s care
4. The father will provide transport collecting him from his mother’s home at 5:00pm and returning him at 5:00pm.
5. Weekend access is suspended during the school holiday
periods (access weekend to recommence 2-4 February
2001).
76. These orders answer the description in reg 2(1) of ‘rights of access’ because they provide for the father to take the child to a place other than that of his habitual residence with the appellant. But do they confer ‘rights of custody’ because they confer upon the father ‘the right to determine the place of residence of the child’ (reg 4(2))?
77. Some difficulty arises from the use of the term ‘right’ in the expressions in reg 4 (and in Art 5) ‘rights of custody’ and ‘right to determine’. Even when used in a broad sense, to speak of a ‘right’
‘in one person suggests a correlative duty, obligation, disability or liability in others. Regulation 4 is so drawn that ‘rights of custody’, and, by inference, those of determination of place of residence, may arise by reason of judicial decision: (reg 4(3)(b)). Here, the Access Order gave rise to rights in each parent with correlative duties or obligations in the other parent to observe the requirements of the Access Order.
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78. But unlike the court orders in some of the cases arising directly under the Convention or specific provisions made for parental rights and duties by legislation considered in other cases, the Access Order was not addressed to and imposed no prohibition on, in the absence of consent by both parents, the removal of the child from the jurisdiction of the New Zealand court which made the order.
79. A ‘right of veto’ of that nature may give rise to a right in each parent to determine that there be no change in the ‘place of residence’, using that phrase to refer to the Convention country where the child habitually resides; the right of each is attended by the correlative obligation of the other party to observe the status quo and the observance of the obligation will attract whatever remedies are given by the judicial or administrative authorities of that Convention country of habitual residence. That power of prohibition of change may answer the phrase in reg 4 (and in Art 5)
‘the right to determine…’. The majority of the Full Court referred to decisions in Australia and other Convention countries in which that proposition found favour and Finn J was prepared to accept them. The Authority supported this line of authority.
80. The appellant pointed to several difficulties in its acceptance. One fixed upon the distinction between a restriction upon change of the status quo and an active power to choose and change at will the country of residence of the child. In that respect the appellant relied upon a line of authority including the majority of the Court of Appeals for the Second Circuit in Croll and Croll.
81. A distinct difficulty would arise where, as in Croll v Croll itself, the source of the power of veto was found not in the terms of a court order or in statute but merely in an agreement between the parents. There, as the appellant correctly submitted, the ‘right of veto’ would at best be a potential right, dependent upon a successful application to the relevant judicial or administrative authorities for its enforcement by creation of a presently imperative bar to removal. The ‘right to determine’ spoken of in reg 4 (and Art 5) is more than an expectancy or potential right.”
74 In their respective dissenting judgments both Gleeson CJ and Kirby J agreed that
if the father was shown to be a legal guardian of the child then he would have “rights
of custody” for the purposes of the application of the Regulations.
75 Significantly, the relevant legislation, being the Care of Children Act 2004 (NZ), defines guardianship in section 15 and its exercise in section 16, including “changes to the child’s place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child’s relationship with his or her parents and guardians.
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76 Ultimately, the determination of the matter rested upon the issue as to whether or not the relationship between the parties was of such a nature as to invoke section 17 of the Care of Children Act (N.Z.) 2004 which would have the effect of conferring upon each of them status as joint guardians.
77 Whilst counsel for the mother would argue that the starting point for any consideration of this matter would be the terms of the order, as contemplated by the plurality in MW v Director-General of the Department of Community Service (supra), ultimately, that was not definitive to the outcome in that particular case and whilst the observations of the majority of the High Court are sage, as logically the starting point of any enquiry is the order that determines the rights (to the extent it does) of the parties and their respective obligations implicit in the conclusion by the High Court was the proposition that notwithstanding the orders of the court the father could still maintain by operation of the Care of Children Act 2004 the status of guardian with its consequential right to determine the place of residence of the child.
78 It is implicit that the access order did not extinguish that right, nor suspend it.
79 Further, it would seem that MW v Director-General of the Department of Community Services (supra) can be distinguished on the basis that it would appear, at least, that the orders made in December 2000 operated as final or ongoing orders that determined the relationship between the parties.
80 In the current case, that was certainly not the situation as there were ongoing
competing proceedings between the parties as to the final determination of issues of
custody.
81 Significantly, in my view, the evidence of Mr Perera that the right to determine a child’s place of residence would be an aspect of legal custody as opposed to a routine day to day matter was not disputed, and such a view sits comfortably with modern jurisprudence about the regulation or interaction in relationships between parents and children.
82 The question then ultimately becomes one of determining whether or not those
rights were extinguished or suspended by the operation of the orders made in
December 2008.
83 The orders made in December 2008 determined on an interim basis, pending the final resolution of the matter, the time that the child was to spend with the father. There are no express words that extinguish the father’s right of custody which is a preferential right that the mother carried the burden of discharging.
84 There is no evidence that she had discharged that right or that that right did not include the right to determine a child’s place of residence.
85 It is correct, in my view, to have as a starting point the terms of the order. For as much as the order may specify the time that the child is to spend with the father, what is significant is what it does not specify, and that is the extinguishing of a preferential right, which, by the natural inference of such a preferential right and the relevant authorities and commentary referred to by Messrs Perera and Nicholas, must be
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expressed to be extinguished or otherwise cease in its operation. Absent that specific elimination of that right I am not satisfied that the inference should be drawn that it has ceased to exist or ceased in its operation.
86 The submission by Mr Nicholls QC that the father’s custody rights had been restricted by the access order must, in my finding, fail, and similarly any argument that absent an expression in the order of a restriction on the mother’s right to choose the place of residence of the child, the mother was not so restricted, must also fail.
87 Further, the father was at the relevant time actively pursuing a final determination of the parties’ competing claims for sole custody of the child. In those circumstances I am not satisfied that it could be said, or that the mother could demonstrate, as she must, that the father was not exercising a right of custody.
88 Whilst the access order may have been determined in the day to day arrangements for the interrelationship between the parties and the child, it was not, in my finding, determinative of the ultimate rights of the parties and the child, or the extent to which they may be exercised. A distinction is there to be drawn between the observations made by the plurality in MW v Director-General, Department of Community Services (supra), where the relationship between the parties had been settled by the orders made in 2000. However, what was the overarching significance of the decision of the plurality was the acceptance of the proposition, it would seem, that the statutory conferred rights of the father could co-exist with the order if those rights were found to be in place. It was the absence of that finding that was ultimately determinative of the rights of the father in MW v Director-General, Department of Community Services (supra).
89 The Canadian High Court in Thomson v Thomson [1994] 3 S.C.R. 551 heard an appeal in relation to the removal of a child from Scotland to Canada by the mother. The plurality in MW v Director-General, Department of Community Services (supra) quoted from the judgment of La Forest J in that case.
90 The case related to a mother, who, contrary to an interim court order granting her custody of the child which restricted her from removing the child from the jurisdiction, removed the child from Scotland without the father’s knowledge or consent. La Forest J said at page 279:
“The third approach, that the effect of the insertion of a non-removal clause in an interim custody order is to retain a right of custody in the court, was adopted by the English Court of Appeal in B. v. B. (abduction: custody rights), [1993] 2 All E.R. 144. There, the mother and father married in England in 1977 and moved to Ontario in 1981, where they became Canadian citizens. Their son was born in 1985. The parties separated in 1990. In January, 1991, a consent order granted interim custody to the mother with liberal access to the father, and included an order preventing the child's removal from Ontario. In May, 1991, the mother sought final custody and leave of the court to remove the child to England. That motion was returnable on June 27, 1991. In her affidavit, the mother stated: ‘I have no intention of leaving this jurisdiction without an appropriate order of this honourable court.’ On June 27th the motions
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judge adjourned the hearing of the substantive issues but ordered that the child ‘shall not be removed from the jurisdiction in the interim’. The hearing was to resume July 2, 1992. On that day, the judge gave directions for the substantive hearing to continue at a later date in a new venue. His order continued the interim custody of the wife and specified the access times of the husband. It did not, however, include a non-removal clause. The next day, the wife left for England with the child. Sir Stephen Brown P. of the English Court of Appeal held, at p. 149: In my view this was the plainest example of an unlawful removal. The mother herself appears to have thought so, for she later stated that she regretted having taken that step at that time. It is suggested that she did not appreciate the legal position, although she was in receipt of legal advice at the time. It seems to me that the court itself had a right of custody at this time in the sense that it had the right to determine the child's place of residence, and it was in breach of that right that the mother removed the child from its place of habitual residence.
I am fully in agreement with this statement. It seems to me that when a court has before it the issue of who shall be accorded custody of a child, and awards interim custody to one of the parents in the course of dealing with that issue, it has rights relating to the care and control of the child and, in particular, the right to determine the child's place of residence. It has long been established that a court may be a body or institution capable of caring for the person of a child.”
91 So, unlike a final order whereby one parent is given custody of a child, an
interim order is only temporary. As the Encyclopaedic Australian Legal Dictionary
defines, an interim order in family law is:
“... an order made pending a further or final order. Often made in applications for parenting orders in relation to a child, due to delay in the final hearing dates being appointed ...”
92 Although differences in legal systems are vast the world over, such a basic
concept as interim orders shares a common definition, particularly given the colonial
history of both countries in this case.
93 This set of facts can further be distinguished because not only was the order interim but it remained silent on the custodial rights over the child, which the Central Authority argues did not extinguish the father’s preferential right. Silence in an order of a court does not always rebut a presumption at law.
94 Further, the nature of an interim order, even in circumstances where custody is
ordered to one parent over the other, may still keep alive rights of custody, vesting in
the court pending final determination.
95 In Thomson v Thomson (supra) at page 255, Lamer C.J.C, Sopinka, Gonthier, Cory and Iacobucci JJ concurred with La Forest J that:
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“The Convention is directed to the enforcement of custody, as distinguished from access. The mandatory return directed by the Convention is limited to cases where the removal is in violation of the custody rights of a person, institution or other body. The Convention thus does not apply to every case where a child is removed from one country to another where a court order prohibits it. In this case, there was a removal of the child from the foreign jurisdiction constituting a breach of custody rights there, notwithstanding that the mother had interim custody. The insertion of a non-removal clause in an interim order of custody is intended to preserve the court's jurisdiction to make a final determination of custody. When a court is vested with jurisdiction to determine who should have custody of the child, it is, while in the course of exercising that jurisdiction, exercising rights of custody within the broad meaning of the term contemplated by the Convention. The mother's removal of the child constituted a breach of the custody rights of the foreign court within the meaning of art. 3 of the Convention, requiring the return of the child forthwith pursuant to art. 12 of the Convention. A non-removal clause inserted in a permanent order of custody would raise different issues as such an order is intended to preserve rights of access by the non-custodial parent, which rights are not given the same level of protection by the Convention as custody.”
96 However, the plurality in MW v v Director-General of the Department of Community Services (supra) at paragraphs 87 to 90 disagreed with the principle that a parent who does not have custody may bring an application asserting breach of custodial rights vested in a court [footnotes removed]:
“87 Article 8 uses broad terms and speaks of an application by a person, institution or other body claiming that a child has been removed or retained in breach of ‘custody rights’, without limiting the identity of the applicant to the holder of the rights.
88 But in Australia, reg 16(1A), in defining what amounts to a
‘wrongful’ removal, fixes (par (c)) upon the person, institution or other body seeking return and requires it to have had rights of custody immediately before the removal. Even if the New Zealand court did have such rights, it was not the Convention applicant here. The Authority moved in the present case upon the motion of the father whom it described in the application to the Family Court as ‘[t]he applicant under the Convention’ and as having the alleged rights of custody spelled out earlier in these reasons.
89 The decisions of courts in other Convention countries, including those of the Supreme Court of Canada and the House of Lords which do not link the identity of the Convention applicant to the holder of the custody rights, must be read with attention to the precise requirements in the Australian legislation. The Regulations, as Finn J indicated, do not accommodate a Convention application by a parent asserting breach of the rights of custody vested in a court.”
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97 The father’s application in this case nevertheless is not an application where rights of custody vested in a court are alleged to have been breached. This is a situation where the father’s own preferential rights of custody have been breached by the mother’s wrongful removal of the child.
98 The father’s preferential rights of custody have not been extinguished by judicial
or administrative decision. The mother has not gained legal rights of custody to the
child by judicial or administrative decision.
| c) | Whether there were rights of custody through agreement having legal effect |
99 No agreement between the parties exists that gave one party custody of the child
in favour of the other.
Conclusion
100 By operation of Roman Dutch law in Sri Lanka, the father has preferential rights of custody over the child.
101 The Sri Lankan order of 18 December 2008 did not extinguish his rights both as to its interim measure and silent nature.
102 The only issue at trial was whether the mother’s removal of Yathukulan was wrongful because of the rights of custody of the father and the exercise of those rights.
I find that it was.
103 The child is to be returned to his country of habitual residence.
104 I will hear counsel as to the precise terms of the orders required.
I certify that the preceding [104] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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