COMMISSIONER, WESTERN AUSTRALIA POLICE and WOODY
[2019] FCWA 239
•28 OCTOBER 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986
LOCATION: PERTH
CITATION: COMMISSIONER, WESTERN AUSTRALIA POLICE and WOODY [2019] FCWA 239
CORAM: DUNCANSON J
HEARD: 28 OCTOBER 2019
DELIVERED : Ex tempore
FILE NO/S: PTW 6896 of 2012
BETWEEN: COMMISSIONER, WESTERN AUSTRALIA POLICE
Applicant
AND
MS WOODY
Respondent
Catchwords:
FAMILY LAW - CHILD ABDUCTION - application for discharge of return order pursuant to reg 19A of Family Law (Child Abduction Convention) Regulations 1986 (Cth) - where the Court is satisfied as to the criteria therein - discretion to discharge return order exercised
Legislation:
Family Law Act 1975 (Cth)
Family Law (Child Abduction) Regulations 1986 (Cth) reg 19A
Convention on the Civil Aspects of International Child Abduction 1980
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms N Eagling |
| Respondent | : | Self-Represented Litigant |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Self-Represented Litigant |
Case(s) referred to in decision(s):
Commissioner Western Australia Police and Woody [2013] FCWA 67
Soysa v Commissioner, Western Australia Police (2012) 46 Fam LR 648
State Central Authority v Ustinov (No 4) [2008] FamCA 987
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner Western Australia Police & Woody has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1On 5 December 2012 the applicant applied pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations") for the return to [Country A] of [Child A] and [Child B], the children of [Mr P], the father and [Ms Woody], the mother. Ms Woody is the respondent in the proceedings.
2On 3 July 2013 the Court delivered judgment determining that the children must be returned to Country A.
3On 11 September 2019 the applicant filed an application seeking the discharge of the return order made by the Court on 16 December 2013 and varied on 18 February 2014.
4On 21 October 2019, the applicant filed a Minute of Consent Orders, seeking the discharge of the return order.
BACKGROUND
5The father was born in Country A [in] 1973 and is 46 years of age. The mother was born in Australia [in] 1971 and is 48 years of age. The parties commenced a relationship in 2003 and began cohabitation in the mother's home in Country A in 2004.
6Child A was born [in] 2005 and is 14 years of age. Child B was born [in] 2007 and is 12 years of age. [Child C] was born [in] 2008 and is 11 years of age. Child C is not subject to the return order.
7The parties' relationship ended on 25 July 2008 and they separated in September 2008.
8After separation, the children lived with the mother and had sporadic contact with the father.
9The children last saw the father in October 2008.
10In 2009 the father moved to [Country B] to live and work and despite attempts to agree contact, no arrangements were made.
11On 6 August 2012 the mother brought the children to Australia from Country A.
12The children have not since returned to Country A.
THE PROCEEDINGS
13On 3 July 2013 I delivered judgment ordering the children's return to Country A. Orders concerning the children’s return to Country A were not made at that time, as there was some uncertainty surrounding the immigration status of the mother and the children in Country A. There was also disagreement between the parties as to who would be responsible for the costs of the return.
14On 16 December 2013 I made detailed orders concerning the children's return. The return was conditional upon certain financial obligations to be met by the father, including:
(a)to pay the costs associated with applications for Country A citizenships and passports for the children, the mother and Child C (who was not the subject of the application for return) estimated in the sum of $5,575 (Order 3);
(b)to pay the reasonable costs of flights to Country A for the children, the mother and Child C (Order 4);
(c)upon the children's return, to commit 25% of his net income for the children and Child C (Order 6(a));
(d)to ensure that the former matrimonial home was in a good state of repair upon the children's return and failing that, to provide suitable alternative accommodation for the children (Order 6(b) and (c)); and
(e)to pay the sum of [Country A currency] 2,610 into a trust account to be available for the children’s welfare (Order 8).
15On 15 January 2014, the father applied to vary the return order such that he pay the costs of the return of the children only and the order providing for payment of [Country A currency] 2,610 be “deleted” .
16On 18 February 2014, the Court granted the father a further opportunity to comply with his obligations under the return order, extending the time within which the father was to comply with order 3 by 28 days and the Court discharged order 8.
17The father was required to deposit monies on account of the airfares and various other expenses by 18 March 2014. The father did not do so as he did not have sufficient funds.
18The father was unable to comply with the conditions of the children's return to Country A. Between May and December 2015, he attempted to negotiate an access arrangement concerning the children with the mother.
19The proposed access arrangement was communicated to the mother on 21 December 2015.
20The mother opposed the father's proposal. For reasons set out in her letter dated 24 December 2015, she was of the view that the arrangements were not in the best interests of the children. She was of the view that a re-introduction process handled by professionals was necessary to avoid emotional damage to the children who at that time had no relationship with the father.
21On 8 April 2016, the [Country A Central Authority] attempted to engage with the father as set out below to ascertain how he would like to proceed:
"Dear [Mr P]… Please note the Central Authority for Australia expects your response by 29 April 2016. They informed that "if we haven't received a clear response by then, I anticipate that we will proceed to seek a discharge of the return order and close the file."
22On 9 May 2016, the Country A Central Authority closed the file by reason of their inability to contact the father and his failure to respond to correspondence.
23On 25 July 2016, the father replied to the above correspondence setting out his inability to meet the conditional requirements, which he described as "impossible" to carry out, however he was hopeful the case would not be "closed". This was the last time the Australian Central Authority had communication from the father.
24On 26 August 2019, the Australian Central Authority sought the father's views on the proposed application to discharge the return order. As at 10 September 2019, no response had been received from the father.
The Relevant Law
25Regulation 19A of the Regulations sets out the Court's power to discharge return orders. This discretionary power under reg 19A provides as follows:
(1)If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.
(2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a)all the parties consent to the return order being discharged; or
(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
(c)exceptional circumstances exist that justify the return order being discharged; or
(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.
(3)In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA (1) of the Act.
The Applicant's case
26The applicant relies on the ground contained in reg 19A(2)(b) and submits that, since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out.
27In Soysa v Commissioner, Western Australia Police (2012) 46 Fam LR 648, Thackray CJ said at [148]:
"Notwithstanding it accords with one of a number of meanings for "impracticable" given by the Shorter Oxford Dictionary, in my view the formulation "unable to be carried out" comes too close to "impossibility", which is clearly not the test. I consider that the first synonym suggested by Dawe J, namely "unmanageable", is more apt in the context of the Regulations because it allows "some degree of reason" to enter into the process of determining whether the discretion to discharge the order had been enlivened".
28At the time the return order was made, the father offered to financially assist the children and mother in their return to Country A. Since the making of the return order, the father has been unable to maintain his offer of financial assistance, and the return order has remained unsatisfied for almost six years.
29Additionally, the father has not been in contact with the Australian Central Authority since July 2016, despite attempts to contact him.
30The applicant submits and I am satisfied that these are circumstances that have arisen since the making of the return order that make is impracticable for it to be carried out.
31The applicant also relies on the ground contained in reg 19A(2)(c). The children have now been residing in Australia for over seven years. The applicant submits and I accept, the only available inference is that with the sheer effluxion of time, the children have become accustomed to Australia, such that it is their place of habitual residence.
32In State Central Authority v Ustinov (No 4) [2008] FamCA 987, Dawe J at [11] considered the meaning of the phrase "exceptional circumstances":
"The ordinary meaning of the words, as there is nothing in reg 19A which suggests that they have any particular meaning other than their usual meaning. I accept that "exceptional circumstances" requires the finding of something unusual or something in the nature of exception and that the word "impracticable" requires something which makes it unmanageable or unable to be carried out. "
33The applicant further submits and I am satisfied that these are exceptional circumstances existing which justify the return order being discharged.
34The applicant additionally relies on the grounds contained in regs 19A(2)(a) and (d) which are established, namely:
•the mother consents to the discharge of the return order sought by the applicant; and
•the Court varied the return order almost six years ago and thus it is more than one year since it was determined.
Exercise of Discretion
35My discretion to discharge the return order is enlivened on the basis that I am satisfied that one or more of the criteria in reg 19A(2) have been met.
36The Court has a discretion to leave the return order in place even if one or more of the designated criteria is met.
37In Soysa v Commissioner, Western Australia Police (2012) (supra), Thackray CJ said at [84]:
"Regulation 19A provides no guidance as to the matters to be taken into account in the exercise of the discretion to order the child's return, should the discretion arise. However, it is clear that the child's best interests would be a matter properly taken into account… The discretion is otherwise “unconfined” except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous".
38The applicant submits that the following matters, relevant to the exercise of the Court’s discretion, weigh in favour of the discharge of the return order.
39Firstly, it would be implausible for the Court to decline to discharge the return order if the Court finds under reg 19A(2)(b) that the order cannot, by reason of impracticability, be carried out. The father has not complied with the conditions of the return order and is not able to do so. He has not communicated with the Australian Central Authority. In these circumstances it is impracticable for the order to be carried out.
40Secondly, the best interests of the children are a factor to be taken into account. The children have been living in Australia since 2012. I accept that although the circumstances in which the children were taken from Country A was wrongful, their current place of habitual residence is now Australia and they are happy and settled here. Removing the children from a place to which they have been taken, years after their original removal will have a disruptive and potentially devastating impact. I agree with the applicant’s submission that a return to Country A will be contrary to the best interests of the children.
41Thirdly, the policy underpinning the Convention on the Civil Aspects of International Child Abduction 1980 ("the Convention"), which is for children to be returned to their place of habitual residence in all but exceptional circumstances should be weighed for fear of the effect the decision may have on the lives of other children whose parents may be contemplating abduction. The discharge of the return order will not contravene this policy imperative as the children have, with the passage of time, lost their status as habitual residents of Country A and have instead made a home for themselves in Australia.
42Fourthly, the father, as the requesting parent, had ample opportunity to comply with his obligations under the return order and has not done so notwithstanding efforts made by the Central Authority to engage with him.
43Fifthly, a discharge of the return order will bring this matter to an end and finally remove any uncertainty about the children's ability to remain in Australia. This is clearly in the children's best interest, particularly given such uncertainty does not afflict the children's mother, or their sister, Child C, who is not subject to the return order.
44There may be some undue stress or concern associated with the older two children knowing that their younger [sibling] is not bound by the return order. Further, there would be an enormous emotional impact on the children being separated from their primary attachment figure, their mother, who is also living and settled in Perth.
45The children last saw the father in October 2008. During the substantive proceedings, the mother explained at [37], "that the father is "effectively a stranger" to the children".
46In December 2015, seven years after the father’s last contact with the children, he set out a proposed access arrangement, whereby amongst other orders, he proposed the children have unsupervised contact with him for a period of 14 days during the 2016 school holiday period. Understandably this proposal was not acceptable to the mother.
47It has now been 11 years since the children have seen or had any contact with the father. In my view, any attempt at reunification will have a significant emotional impact on the children. If however the return order is discharged, the children may be more open to re‑establishing a relationship with the father, without the uncertainty of relocation.
48The above considerations are relevant to my decision as to whether to exercise the discretion to discharge the return order. I am satisfied in the circumstances that I should exercise my discretion and discharge the return order.
ORDERS
49I make orders in terms of the minute of consent filed on 21 October 2019 as follows:
1Pursuant to Regulation 19A(2)(a) of the Regulations, the return order made [in] December 2013 and varied [in] February 2014 in respect of [CHILD A] (born [in] 2005) and [CHILD B] (born [in] 2007) be and is hereby discharged.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate12 NOVEMBER 2019
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