Commonwealth Central Authority and Sangster (No 2)
[2018] FamCA 894
•5 October 2018
FAMILY COURT OF AUSTRALIA
| COMMONWEALTH CENTRAL AUTHORITY & SANGSTER (NO. 2) | [2018] FamCA 894 |
| FAMILY LAW – CHILD ABDUCTION – application for discharge of return order based on exceptional circumstances within the meaning of r.19A(2)(c) of the Family Law (Child Abduction Convention) Regulations 1986. FAMILY LAW – CHILD ABDUCTION – relevant circumstances – where circumstances must be exceptional – where sets of circumstances taken cumulatively were considered exceptional. FAMILY LAW – CHILD ABDUCTION – factors to be taken into account in the exercise of the discretion to discharge a return order. FAMILY LAW – CHILD ABDUCTION – where issue raised but not pursued or necessary to determine, being whether conditions to return are machinery provisions which can be varied or substantive orders so that, where judge is functus officio, orders cannot be changed absent consent of all parties or appellate intervention. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law Act 1975 (Cth) |
| De L v Director-General, NSW Department of Community Services [1996] 187 CLR 640 Department of Family and Community Services & Smollett (No. 2) [2018] FamCA 372 DP v Central Authority; JLM v NSW Dept of Community Services (2001) FLC 93-081 In the matter of A (Children) (AP) [2013] UKSC 60 LK and the Director-General of Department of Community Services [2009] 237 CLR 582 Mercredi v Chaffe [2012] Fam 22 Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 |
| APPLICANT: | Commonwealth Central Authority |
| RESPONDENT: | Ms Sangster |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Fitzgerald |
| FILE NUMBER: | HBC | 1189 | of | 2017 |
| DATE DELIVERED: | 5 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne – by video link to Hobart and telephone link with the CCA in Canberra |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 5 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Webb |
| SOLICITOR FOR THE APPLICANT: | Commonwealth Central Authority |
| COUNSEL FOR THE RESPONDENT: | Mr Tresize |
| SOLICITOR FOR THE RESPONDENT: | Dobson Mitchell Allport |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Commission of Tasmania |
Orders
Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 – 30 November 2018
IT IS ORDERED THAT:
(1)Pursuant to Regulation 19A(c) of the Regulations, paragraphs 2 to 12 inclusive of the Order made on 19 July 2018 be and are hereby discharged, paragraphs 1, 2 and 3 of the Order made on 21 December 2017 be and are hereby discharged and the Order made on 22 December 2017 be and are hereby discharged. (Amended 30 October 2018)
(2)My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
(3)Otherwise, the Application in a Case filed by the Independent Children’s Lawyer on 10 August 2018 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym CCA & Sangster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: HBC 1189 of 2017
| COMMONWEALTH CENTRAL AUTHORITY |
Applicant
And
| Ms Sangster |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before me nearly three months after I ordered that the two children, Y (seven years) and Z (four years), be returned to the Netherlands pursuant to reg. 14 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The return was subject to certain conditions. The conditions required their father, who was the requesting parent in the application[1], to pay €3000 together with airfares for the children, their older sister (who will be 15 years old this month) and their mother to return to the Netherlands and to obtain certain safeguarding orders from the competent court in the Netherlands. I will refer to the totality of the conditions as “safe harbour orders”.
[1] The father is the Article 3 applicant as defined in reg. 2.
The father was required to deposit monies on account of the airfares and to pay the €3000 by 2 August 2018 which has long since passed.
On 10 August 2018 the independent children’s lawyer filed an Application in a Case seeking certain orders which contemplated the father being given some further opportunity to comply with his obligation under the safe harbour orders, failing which the need for compliance the return order would be discharged.
The independent children’s lawyer’s application was returnable on 19 August 2018. Mr Akele, who appeared on behalf of the Commonwealth Central Authority, made oral application for an extension of the time within which the father could comply with the conditions. That application would have involved a determination of whether the times for payment and the terms for implementation of the conditions were machinery provisions or substantive orders. If they were machinery provisions, they could be altered. However, if they were substantive in nature, absent consent or appellate intervention, they would not be altered. Mr Akele indicated that the date to which the husband would seek an extension was 20 September 2018.
I directed that the Commonwealth Central Authority make the application formally and adjourned both applications to today.
RECORDED: NOT TRANSCRIBED
When 20 September 2018 had come and gone and the father had still not paid the moneys envisaged under the safe harbour orders nor made any apparent effort to obtain the orders from the courts of competent jurisdiction in the Netherlands, the matter was listed for mention before me on 25 September 2018.
On 25 September 2018, Mr Akele for the Commonwealth Central Authority informed the court that the Commonwealth Central Authority was discontinuing its application for an extension of time within which the father could comply with his obligations under the safe harbour orders. Furthermore, it was acknowledged that the conditional order for return could not be complied with and, in effect, the children would not be returned pursuant to my order.
Mr Tresize for the mother indicated that he would be making an application for a discharge of the return orders pursuant to r.19A(2)(c) which is the application I now determine.
Regulation 19A provides that the Court may make an order discharging the return or part of the return order. It is a discretionary power.
Regulation 19A(2) relevantly provides:
The Court may make an order discharging a return order or 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 a discharge of the return order was made is more than one year after the return order was made or any appeal in relation to the return order was determined.
In this case, the wife relies on exceptional circumstances which justify the return order being discharged within the meaning of r. 19A(2)(c).
There is not a great deal of authority on the invocation of 19A. I note that earlier this year McClelland J refused an application to discharge a return order, in the matter of Department of Family and Community Services & Smollett (No. 2) [2018] FamCA 372 (“Smollet’s case”).
I agree with McClelland J in Smollet’s case that, in applying r.19A it is necessary for the Court to have regard to the statutory context within which the regulation comes to be. That is, the regulations are made pursuant to section 111B of the Family Law Act 1975 which relevantly provides that:
The purpose of the regulations is to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abductions signed at the Hague on 25 October 1980 (“the 1980 Convention”).
These are not parenting proceedings. They are proceedings pursuant to a forum selection treaty upon which Australia relies to retrieve children wrongfully removed or retained out of Australia. In turn, we repatriate children who are wrongfully in Australia to the contracting state of their habitual residence. It is private international law underpinned by reciprocity and a respect for the legal systems of other contracting states.
McClelland J continued:
8. In DP v Commonwealth Central Authority[2] (“DP”) Gleeson CJ said;
[2] [2001] HCA 39 at [3]
“…the concern of the Convention is to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child the determination of rights of custody and of access. This was said to entail a degree of self-denial, the natural inclination of any court before which such a question comes being to make its own assessment of the interests of the child. The objective is to secure the prompt return of children who have been removed wrongfully, or are being retained wrongfully, so that issues of custody and access may be dealt with according to the laws of their place of habitual residence.
9.In respect to the task before the Court, in Re DP, Kirby J noted that applying the principles of the Convention;
“…requires decision‑makers to face up to what will necessarily, on many occasions, be an unpleasant obligation where there may be a suspicion that the child's best interests, viewed purely as a custody determination, might suggest the child's retention within the jurisdiction, although the proper operation of the Regulations, implementing the Convention, requires an order of removal.”[3]
[…]
11.However, despite that concern I note the further caution of Kirby J in Re DP, Kirby J that:
It is easy enough to slip back into a factual inquiry into the child's best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. But such a tendency must be resisted for otherwise the attainment of the main point of the Regulations and the Convention will be frustrated.
12.At the same time I recognise the further caution of the House of Lords in Re M that "children should not be made to suffer for the sake of general deterrence of the evil of child abduction worldwide”. [4]
[3] Ibid at [131] citing De L v Director-General Department of Community Services (NSW)
[4] [2007] 3 WLR 975 at 992 Referred to in MW v Director-General, Department of Community Services [2008] HCA 12 at [62]; 82 ALJR 629; 244 ALR 205.
To his Honour’s observations I would add that the purpose of the 1980 Convention finds expression in the Preamble as to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access”.
Given Australia’s geographical location, the impact of a return, or non-return, probably to all but our close neighbour New Zealand, is significant and can be far reaching. However, there is no determination of substantive rights and obligations in relation to children. The return of subject children to their home state is not preconditioned on the best interests of the particular child in any comprehensive sense. It is generally considered to be in a child’s best interests to be returned promptly to the place from which they have been wrongfully removed or retained. This is because the courts in that jurisdiction are the natural forum with greatest access to relevant evidence. Also, it is not for one parent to select another forum to the disadvantage of the other parent and, inferentially, the children. Insofar as a child’s best interests do find expression in the application of one or more of the five exceptions to return, that application of best interests principle is not comprehensive.
Apart from requiring that the circumstances rise to the description of “exceptional” the Regulations are silent as to the nature of the circumstances which may qualify under r.19A. It is a similar lack of specificity as exists in relation to matters which are to inform the exercise of the discretion to refuse return which arises when one or more of the five r.16 exceptions to return has been made out. I propose to treat r.19A(2)(c) in the same way. I adopt, with respect, the comments made by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in De L v Director-General, NSW Department of Community Services [1996] 187 CLR 640 where having regard to an exception to return having been made out, their Honours observed:
The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, 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 [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.48
Accordingly, whilst the magnitude or depth of the circumstances must be fairly characterised as “exceptional” in relation to the case, the breadth of circumstances to which the court may have regard in the exercise of its discretion under r.19A(2)(c) is unconfined except insofar as they may be extraneous. I accept that under r19A(2)(c) it is appropriate to have regard to the best interests of the particular child(ren) as well as events or matters arising since the wrongful removal and after the decision to return.
In considering what constitutes “exceptional”, in Smollet’s case McClelland J stated (and I agree):
17. In applying that criteria I am assisted by the reasoning of Rares J in Ho & Professional Services Review Committee[5] where his Honour applied the High Court decision of Baker v the Queen[6] in stating:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
[5] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25]
[6] (2004) 223 CLR 513 per Callinan J at [573 [173]
I am satisfied that the reference to “circumstances” does not require sequential assessment of each circumstance relied upon and that I may have regard to the circumstances cumulatively in assessing whether a discharge of all or part of the order is justified.
Whether there are circumstances which justify the discharge of a return order must be determined in respect of each child individually.
In this case the mother relies on certain circumstances. The circumstances as outlined in the mother’s application[7] are:
7.1 The Requesting Parent has failed or refused to satisfy the monetary and the “safe harbour” conditions of the return Order, specifically paragraphs 4 and 6, and has not demonstrated any or any reasonable attempt to satisfy those conditions. On 24 September 2018, he gave notice to the Court via the Commonwealth Central Authority of his intention to withdraw his application for an extension of time to satisfy the conditions. He has done nothing else.
7.2 The current situation for the children is therefore uncertain, and intolerably so. They have an elder sibling, X born in 2003, who is not subject to the return Order. They have resided in Australia since January 2017 and have necessarily established strong connections with their current place of residence, with their school and their local community. The Mother is unable to provide any assurances to the children concerning their future residence, their education and their ongoing relationship with others significant to them.
7.3 The prolongation of the uncertainty of the children’s return to The Netherlands is against their interests and is exceptional in the circumstances. The return Order should be discharged.
[7] Application to Discharge Return Order filed 1 October 2018
The exclusion of X from the return order was in the exercise of my discretion to refuse return upon being satisfied that she objected to return within the meaning of r.16(3)(c). That is, her objection showed a strength of feeling beyond the mere expression of a preference or of ordinary wishes and she had attained an age, and a degree of maturity, at which it is appropriate to take account of her views
The father gave fairly extensive evidence at the hearing and the conditions for the safe harbour orders were put to him. He specifically agreed that he not only had the ability to pay airfares and the €3000, but that he would do so. He was given 14 days to pay. The tenor of his evidence, as I recollect it, was that he would likely not even need the 14 days, because his relatives had already agreed to advance the money to him.
There has, frankly, been no explanation as to why the money has not been paid. Moreover, the father has not taken any discernible steps to obtain the orders from the competent court of the Netherlands.
The father has notice of the implication of non-compliance with his obligations under the safe harbour orders. In the reasons for decision, I made the following observations:
Consequences if the conditions to return are not complied with
189. If the preconditions to return, such as payment of airfares and the €3000 are not met, the children will not be returned.
190. Similarly, if a suite of safe harbour orders are not rendered enforceable in The Netherlands, as described above, the children will not be returned.
191. I have made the date for payment by the father of the airfares and €3000 relatively short, just 14 days. That I because the father’s evidence was that his family had agreed to provide him with funds but, most importantly, it will not be until the funds are paid over, that the mother and the children will know that the first set of conditions to have been complied with and they are very likely to return. Following payment the mother will have 35 days to extricate herself from the lease on her accommodation, ready the girls to go back to The Netherlands and make whatever preparations she can for accommodation and schooling of the girls on their return and obtain legal advice about what steps (if any) she wants to take before courts of competent jurisdiction in the home state. I am mindful of the many things that the family consultant said should be done to prepare the children for return.
192. For the purposes of this case, if the father does not comply, r19A provides that once a return order is made the applicant Australian Central Authority, the father or the respondent mother may apply to the court, in accordance with a prescribed form, for a discharge of the return order and, if the court is satisfied of certain criteria, it has a discretion to discharge the return order. Such an application can be based on the effluxion of one year from the date of the return order and non-compliance.
193. If the father does not fund the airfares and remit the €3000, I expect that the mother and children will continue on as they have been in Tasmania. The mother or independent children’s lawyer may wait out the one year referred to in r.19A(2)(d) and then apply for a discharge. Alternatively, one or other may make a discharge application based on other criteria in r19A prior to the expiration of the year which, on my calculation, will be 19 July 2019. In all events, the fact that the children have been in Australia since January 2017, will inform the exercise of the court’s discretion so, to that extent, time remains of the essence.
194. A consequence of any failure by the father to meet the conditions to return would be that the children will continue to live with uncertainty about whether they will be compelled to return to The Netherlands. Practically, their parenting arrangements remain unresolved. They would be understandably reluctant to return to The Netherlands temporarily for fear they would not be permitted to leave. Any visit by the father or the older sisters who are aligned with him to Australia, for the purpose of seeing the children, might excite some concern notwithstanding that the inunctions restraining their removal from Australia remain in full force and effect.
In those reasons for decision, for which the case neutral citation is [2018] FamCA 765, I referred to the safe harbour orders as being necessary to give effect to the Convention. That remains my view. There has been no submission to the effect that something has eventuated that renders the safe harbour orders no longer necessary.
The next circumstance relied upon by the mother is that the children are in a state of uncertainty to a degree which is intolerable. There are three children of the family in Australia with the mother. The older child X, born in 2003, is not subject to any return order. So, the younger girls know that their older sister is not bound to return with them to the Netherlands. It is not necessarily contemplated that the siblings will be separated but the younger girls know that X does not have to return and, on the evidence, would only return because she cannot envisage life without them or their mother.
At the hearing of the return application, the Family Consultant stressed that the girls craved finality and certainty. The Family Consultant considered that uncertainty was corrosive to their well-being. I accepted that evidence.
The prolonged uncertainty around return impacts negatively on Y and Z in different but significant ways. The independent children’s lawyer submitted poignantly that the children wanted certainty about where they would be living on each of their birthdays.
I am satisfied that Y (seven years) is adversely impacted by the uncertainty of whether she will remain living in Australia to a degree which may well distract her from schoolwork, inhibit the forming of age appropriate friendships with her peers and leave her with a feeling of helplessness. Uncertainty impacts indirectly on Z (four years) because it affects her older sister, X (nearly 15 years) in the same ways as I have described for Y and it affects her mother.
Another circumstance relied upon by the mother is that the children have been here since January 2017, which is the date upon which they arrived in Australia from the Netherlands. From January 2017 until approximately 2018, the children resided in one part of Tasmania, which was in Hobart in Suburb U with the maternal grandmother. In January 2018, they moved to the other side of Tasmania to live in Town G. So they have lived in two different communities in Tasmania and Y has attended a full school year in each location.
When the children were assessed by the family consultant for the return proceedings, she found that the children were happy in Australia and had settled[8] well into their new lives. They have now been in Australia for 20 months which a relatively long time for children of this age. I accept that they have integrated into the local environment of Tasmania which this has significant consequences for the status of the Netherlands as the state of habitual residence of the children.
[8] This was not “settled” in the context of r.16(2) because the application was filed within a year of the wrongful removal.
In LK and the Director-General of Department of Community Services [2009] 237 CLR 582 the High Court observed that there are a wide variety of circumstances that bear upon that where a child resides and whether that residence is habitual.
The United Kingdom Supreme Court concluded, in In the matter of A (Children) (AP) [2013] UKSC 60, that habitual residence was to be interpreted in conformity with Brussels II bis and the formulation of it by the European Court of Justice. That is:
Habitual residence is the place which reflects some degree of integration by the child in a social and family environment. Shared parental intention to reside in that place is relevant but not necessarily a prerequisite to the establishment of habitual residence.
This formulation is consistent with current Australian legal authority.
In Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, Lord Wilson observed that the above formulation, articulated in Proceedings brought by A [2010] Fam 42 and Mercredi v Chaffe [2012] Fam 22, impacted in two ways on the identification of habitual residence. First, the importance of recital 12 to BIIa ('the grounds of jurisdiction in matters of parental responsibility… are shaped in the light of the best interests of the child, in particular on the criterion of proximity'). Lord Wilson stated that, whilst 'it does not follow that the court can construe a child’s habitual residence by reference to the result which best serves his interests', it does mean that 'where interpretation of the concept of habitual residence can reasonably follow each of two paths, the courts should follow the path perceived better to serve the interests of children' (para [42]). Second, the concept of habitual residence operates (and should be interpreted to operate) in such a way ‘as to make it highly unlikely, albeit conceivable, that a child will be in the limbo … The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one’[45]. This is explained by way of a seesaw analogy [45]:
'As, probably quite quickly, he puts down those roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration… from it'.
By way of amplification, Lord Wilson observed 'expectations which the fact-finder may well find to be unfulfilled in the case before him' were:
'(a) the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;
(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and
(c) were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it', at [46].
Before me, the mother advanced the proposition that the children have ceased to be habitually resident in the Netherlands and they have now made Tasmania the centre of their respective lives. There was no submission to the contrary. I accept that the children’s place of habitual residence, from their perspective, is now Australia. It follows that the order for their return would have the effect of returning them to a country which is no longer their place of habitual residence and in which they have not lived for the last 20 months. In this particular case (but very conceivably not in all cases), I find that circumstance to be at odds with the purpose of the 1980 Convention which is to return children to their state of habitual residence promptly. It is a hot pursuit remedy.
I note that the mother wrongfully removed the children on 30 December 2016 but the return application was not filed by the father until 21 December 2017. In finding the mother’s removal of the children ‘wrongful’ within the meaning of r. 16(1A), I was satisfied that the place of the children’s habitual residence immediately prior to the mother’s removal was the Netherlands. However, r.19A(2)(c) allows me to have regard to all relevant circumstances including the effluxion of time since the removal and the state in which the children are now habitually resident.
In DP v Central Authority; JLM v NSW Dept of Community Services (2001) FLC 93-081, Kirby J observed at [127 to 128] that it was proper to regard the objectives of the Regulations “as including that normally re-storing the child, and the other parties concerned, to the status quo that existed before the international removal or retention in question. Specifically, it is ordinarily to require that the authorities (courts or tribunals as the case may be) in the country of the child is habitual residence should resolve the merits of disputes over custody and, in that context, decide the best interests of the child. It is in this sense that provisions such as those in the Regulations are properly to be classified not, as such, as laws searching for the best interests of the child but rather as laws for selecting the forum where the search is to be undertaken and concluded”.
I found that, by application of the Regulations, the appropriate forum for proceedings about Y and Z was the Netherlands subject to compliance by the father with several conditions. The father has had ample opportunity to comply with his obligations to implement the conditions but has not done so and not provided any reasons therefore.
The return order, as made, satisfied Australia’s obligation in relation to the operation of this forum selection treaty. It provided the father with an opportunity to have the children back in the Netherlands, on terms to which he agreed and for the purpose of their parenting arrangements being determined there, either by Courts of appropriate jurisdiction, acquiescence or agreement between the parties.
If the children were very young and non-compliance with the safe harbour orders impacted exclusively on the taking parent, I would not be particularly troubled. However, in this case the children have settled into new lives, Y has expressed a desire to remain in Australia; they are already emotionally estranged from their other sisters and the father in the Netherlands. It is not appropriate to leave the household with a sword of Damocles hanging over their heads even if it is illusory given the concession by the Central Authority that the father can no longer comply with the conditions.
I am satisfied that, with the effluxion of time and the children’s integration into life in Tasmania, the change in their habitual residence is per se an exceptional circumstance within the meaning of r.19A(2)(c).
RECORDED: NOT TRANSCRIBED
In passing, I note that the 1996 Convention[9] is in force between Australia and the Netherlands. Conceivably the District Court of the Hague could have made an order compelling the return of the child(ren) to the Netherlands to be enforced in Australia but no steps have been taken by the father in that regard.
[9] Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
The Independent Children’s Lawyer supports the mother’s application under r.19A(2)(c). He submits that there is a distinct lack of harmony between the legal and the practical consequences of the application of the 1980 Convention to this case at this time. In the event that the application of the mother was to fail, he would have pursued his own application, which was filed on 10 August 2018.
The Commonwealth Central Authority does not seek to be heard in opposition to the mother’s application for a discharge of the return order
This has been a somewhat unusual case, and it is therefore unsurprising, that the application of 19A(2)(c) would have unusual features to it. This is not a decision which will be readily applicable to other cases where conditions to return are not met. Each case falls to be decided on its own facts. The distinguishing features in this case included that:
·only two of the three children with which the return application was concerned were ordered to be returned,
·the children’s habitual residence has ceased to be the state to which they would be returned, and
·the uncertainty brought about by the father’s non-compliance is impacting adversely on the children in the manner described above.
Taken cumulatively, I consider that these circumstances are exceptional within the meaning of r.19A(2)(c), and that they justify the return order being discharged.
Notwithstanding that a discharge is “justified”, it is still discretionary. The Regulations are silent on what factors can inform the exercise of my discretion to discharge all part of the return order. As referred to earlier, in the absence of specification of relevant factors I regard the factors as being unconfined except to the extent that the subject, scope and purpose of the regulations enable it to be said that effect is extraneous.
I have regard to a number of factors in the exercise of my discretion. First, the appropriateness of Australia as the forum in which parenting arrangements to be resolved in relation to Y and Z. I have already found that there is extensive evidence, including evidence held by child protection authorities, in the Netherlands. Ordinarily this would lead me to conclude that the Netherlands would be the appropriate forum. However, at the trial I was satisfied that the return of the children to the Netherlands would only be tolerable for them if the return could be effected in the care of their mother and X and the mother and girls were given the benefit of certain preconditions to return. The fact that the father has failed or neglected to meet his obligations under the safe harbour orders means that the children would return with the mother without the benefit of the conditions which I considered necessary. In those circumstances, I would not able to say that the Netherlands is the most appropriate forum in which to resolve parenting arrangements for the young girls because their day to day life would be beset by too much hardship in the process.
Second, I am satisfied that Australia’s obligations under the 1980 Convention have been met. It is the requesting parent who has declined to take up the opportunity to have the children returned to the Netherlands on terms with to which he agreed.
Third, I am satisfied that the children have become accustomed to Australia over the last 20 or so months and that Australia has become the state of habitual residence of Y and Z.
Fourth, I am satisfied that it is contrary to the interests of Y and Z for them, the mother or their older sister who is in Australia, to be and are in the uncertainty about their entitlement to remain here. A discharge of the return order will remove any uncertainty.
Fifth, a discharge of the return order leaves the way open for the father and the older children, who are still in the Netherlands, to have access and to communicate with Y and Z without complications of unresolved return proceedings. The 1996 Convention supports access for transnational families by Articles 30 and 35, which provide for cooperation between central authorities in the provision of information and evidence. Chapter IV of the 1996 Convention provides a regime of recognition and enforcement of access orders between contracting states. In short removing the complication of an unsatisfied return order will allow family members to get on with the business of being a family that lives across two countries.
Sixth, I take into account the policy of the 1980 Convention, which is for children to be returned to the place of habitual residence in all but the exceptional situations provided under regulation 16. However, the obligation is finite. Article 7 of the 1996 Convention, which finds expression in s.111CE of the Act, vests general jurisdiction to take measures (make orders) in relation to wrongfully removed or retained children once they have resided in the state of refuge (Australia) for at least one year and there is no return application pending. That is the situation in this case. Whilst Chapter II of the 1996 Convention is about jurisdiction the purport is clear. It is that, once a certain period of time has passed, the children’s previous habitual residence status has fallen away and there are no pending proceedings for return, the children can be regarded as having made a new home in the country in which they are present. It follows that the discharge of the return order is not contrary to the policy of the 1980 Convention.
Finally, because the Independent Children’s Lawyer did not proceed with his application, it has not been necessary for me to decide whether the conditions to return are orders of a machinery nature or substantive orders. The mother and the Independent Children’s Lawyer were going to contend that they were substantive in nature and, absent consent (r.19A(2)(a)) or appellate intervention, could not be varied by me. Because the mother has succeeded in her application to discharge the return order, I did not have the benefit of their submissions.
When I first saw the Independent Children’s Lawyer’s application, my preliminary view was that the safe harbour orders were machinery orders. I have since read a suite of decisions in Smollett’s case including two decisions by McClelland J, one decision by a single judge of the Appeal Division of the Family Court of Australia and a judge of the District Court of New Zealand sitting in that court’s family law jurisdiction. All of those judges referred to certain elements of the conditions to return in that case as being machinery orders. That was undoubtedly correct on the facts in Smollett’s case. On reflection, however, I do not know that my preliminary view would hold on particular facts of this case, concerning Mariam and Amina, with the benefit of argument.
In domestic family law, the implementation of substantive property and parenting orders, by reference to due dates for payment or time spent with children, is done on a bedrock of facts and findings which still pertain. However, in this forum selection proceeding, the children ceasing to be habitually resident in the Netherlands is a seismic shift and a circumstance to which the breadth of r.19A(2)(c) permits me to have regard.
I conclude that the circumstances relied upon by the mother, viewed cumulatively, amount to exceptional circumstances which justify a discharge of the return order in relation to the two younger children and that it is appropriate for me to exercise my discretion to discharge the return order it its entirety.
I would be indebted if the independent children’s lawyer could meet with the children and explain to them the reasoning of today’s order but I would expect that they will already know the outcome by that stage as that should be communicated to them without delay.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 October 2018.
Associate:
Date: 7 November 2018
[1996] HCA 5 (29 February 1996) (1996) 187 CLR 640 at 648‑649 quoting Eekelaar, "International Child Abduction by Parents", (1982) 32 University of Toronto Law Journal 281 at 305.
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