Commonwealth Central Authority and Wageman
[2012] FamCA 726
•30 July 2012
FAMILY COURT OF AUSTRALIA
| COMMONWEALTH CENTRAL AUTHORITY & WAGEMAN | [2012] FamCA 726 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application for permanent stay – where date of retention is challenged – where left behind parent had control of the passports on date of alleged retention – where actions of left behind parent prevented the children from being returned to the country of origin – where Family Court of Australia proceedings in train. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| Artso & Artso (1995) FLC 92-566 Bigg v Suzi (1998) FLC 92-799 Director-General, The Department of Families (QLD) v BW (2003) 32 Fam LR 332 Dobson v Van Londen (2005) FLC 93-225 Ferrall v McTaggart (Trustees for Sapphire Trust) & Ors v Blyton (2000) FLC 93-054 Hanbury-Brown & Hanbury-Brown v Director General of Community Services (1996) FLC 92-671 Henry v Henry (1996) FLC 92-685 Kilgour & Kilgour (1987) SLT 568 LK v Director General Department of Community Services (2009) 237 CLR 582 McDonald & Director-General, Department of Community Services NSW (2006) 36 Fam LR 468 Murray v The Director of Family Services ACT (1993) FLC 92-416 Norman & Howarth (2003) 180 FLR 1 P v Secretary for Justice (2003) NZLR 54 Pelerman & Pelerman (2000) FLC 93-037 Re S (Minors) (Abduction: Wrongful Retention) (1994) 2 WLR 228 Walton v Gardiner (1995) 177 CLR 378 |
| APPLICANT: | Secretary, Attorney-General’s Department |
| RESPONDENT: | Ms Wageman |
| INTERVENOR: | Mr Hemming |
| FILE NUMBER: | SYC | 3125 | of | 2012 |
| DATE DELIVERED: | 30 July 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 25-26 July 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Marcus |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson Mr Schonell |
| SOLICITOR FOR THE RESPONDENT: | Paul & Paul Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr Thomas |
| SOLICITOR FOR THE INTERVENOR: | Santone Lawyers |
Orders
The Proceedings commenced by the Secretary of the Attorney-General’s Department against the respondent mother on 30 May 2012 under the Regulations are permanently stayed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Commonwealth Central Authority & Wageman has been approved by the Chief Justice pursuant to s. 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3125 of 2012
| Secretary of the Attorney-General’s Department |
And
| Ms Wageman |
REASONS FOR JUDGMENT
The respondent in this application seeks the proceedings be permanently stayed or dismissed on the basis that the proceeding is an abuse of process, or alternatively, that the applicant could not succeed as the application is doomed to failure. At the heart of this application is the assertion that, on the applicant’s own evidence and/or all other incontrovertible evidence (in particular that of the father, Mr Hemming) the father embarked on a course of action which removed the respondent’s ability to return the children to Sweden on 30 March 2012 (or should it be relevant, at any time since), the date upon which the applicant says the respondent retained the children in Australia.
The applicant’s case is that the alleged retention enabled the Swedish Government to request the Australian Government, through the Central Authority, to take proceedings under the United Nations Convention on the civil aspects of international child abduction. The applicant says the proceedings are appropriately brought.
The action which the respondent says gives rise to the abuse of process is the father’s retention of the children’s passports on or about 29 March 2012, and certainly for the whole of the day of 30 March 2012. The passports were said to be under his direct control until about 15.50 hours on 30 March 2012, at which time he caused them to be placed with his retained solicitor, Santone Lawyers, with instructions not to release the passports of the children to the respondent to permit her to travel out of Australia with the children.
The respondent says that, on the applicant’s own evidence, the father was concerned the children not be removed from Australia by the mother, as he feared she would take them to a country which was not a signatory to the United Nations Convention on the civil aspects of international child abduction. Indeed, he says he was advised to prevent her removing the children without him also accompanying them.
The applicant’s case is that the Court has to look at the practical implications of the father’s actions in relation to the children’s passports on 30 March 2012. The applicant said the respondent mother had made it clear to the father on 30 March 2012 that she would not be travelling out of Australia on that day and therefore it was irrelevant that, had she decided to leave with the children on that day otherwise than as stipulated by the father, she would not have been able to do so.
For the purpose of this application the respondent has directed the Court’s attention to the application filed by the applicant on 30 May 2012.
The respondent also relies upon:
a)Exhibit R1, which is an order of this Court dated 30 May 2012;
b)Exhibit R3, being file notes of Santone Lawyers;
c)Exhibit R4, being an email from the respondent’s lawyer to the father’s lawyers;
d)The information on the court file in relation to the Family Law Act proceedings between the father and the respondent mother.
The father relies upon:
e)a letter from the father’s lawyers, Santone Lawyers, to the respondent’s lawyers dated 30 March 2012;
f)a letter from the respondent’s lawyers to Santone Lawyers dated 24 April 2012 and the response to that letter dated 29 April 2012.
The applicant relies upon:
g)paragraph 65 of the respondent’s affidavit sworn 6 July 2012. The applicant also relied on paragraph 83 of that affidavit;
h)page 80 of the father’s affidavit, which related to his efforts to obtain air tickets with Etihad Airlines on 30 March 2012 in order to remove the children from Australia.
The Father’s Case
In a somewhat unusual circumstance, the father sought to be heard in relation to the respondent’s application by making an application on the morning of the second day of the hearing, at a time when the applicant and respondent had concluded their submissions on the first day of the hearing. I had reserved judgment and was in the process of reviewing each party’s case. Neither the applicant nor the respondent objected in principle to the father being able to make his own submissions.
I will deal in greater detail with the position put by the father later in these reasons. However, for present purposes, they can be summarised as follows.
·The exercise in determining whether a retention is wrongful is a general inquiry. It is akin to the inquiry which should occur in determining whether children were habitually resident in a particular country at a relevant date.
·The intent of the parties should be considered.
·Whilst conceding that reg 16(1A)(e) would require the court to find a wrongful retention took place at a particular time, the father submits that time would be either when the mother did not produce the children to the father at about 11 a.m. on 30 March 2012 or at the time the father had to board his flight to Sweden on that day.
·The father’s actions in depriving the mother of the children’s passports on 30 March 2012 and until 30 May 2012 is said to be irrelevant to the finding of “wrongful retention”.
·The mother cannot rely upon the father retaining the children’s passports as a defence to the application to return the children to Sweden. She is required to take active steps, e.g. by obtaining new passports for the children.
The respondent’s case
The mother’s case really arises in the first place out of the Regulations pursuant to which the subject application is brought. Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 (hereinafter referred to as “the Regulations”) obliged the Court to make a return order upon the conditions in sub-reg (1) being complied with. The relevant sub-regulation of reg 16(1) for the purpose of this application is (c), which is a follows:
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A).
Regulation 16(1A) defines what constitutes a retention which is wrongful. Again, there are a number of requirements to be met (five in all). It is sub-regs (d) and (e) which are of particular relevance in this case. Those sub-regulations are as follows:
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:
(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.
The Applicant’s Case
The Central Authority’s case is that the period of time the parties had agreed to spend in Australia with the children was from 1 January 2012 to 30 March 2012. It is put that the mother’s failure to take the children back to Sweden on 30 March 2012, or to permit the father to do so, amounts to wrongful retention under the Regulations. The facts upon which the respondent relies have been identified in submissions as follows. Those facts have been identified from evidence which has been put before the Court by the applicant or is before the court as incontrovertible evidence.
a) Until 12 midnight on 30 March 2012, the mother could have left Australia for the purpose of returning the children to Sweden and avoided the accusation of wrongful retention of the children in Australia.
b) On 18 March 2012 the father took possession of the children’s passports and retained them to the exclusion of the mother from that point in time until an order was made by this court on 30 May 2012 on the application of the Central Authority. The order required Santone Lawyers to deliver the passports of the children to the registry manager of this Court (see Exhibit R1).
There are a number of pieces of evidence relied upon to establish the above facts.
a)Page 13 of the application, being the father’s statement upon which the applicant relied to commence the proceedings.
b)The father on March 26, 2012, contacted Etihad Airlines, the air carrier with which the family had confirmed tickets to return to Sweden from Sydney Airport on 30 March 2012. The father instructed the airline it was not, under any circumstances, to change or cancel the tickets for the family without his approval.
c)On 26 March 2012 the father contacted the Swedish Embassy to seek information about his right to return the children to Sweden. On 27 March 2012 he contacted the Swedish Consulate.
d)On 29 March 2012 the father received from the mother’s father a copy of a document titled, “Consent Order”. That document is reproduced at page 26 of the application and following.
e)The said consent order was framed in terms which suggest the parties were agreed about the purpose and effect of the orders which provided for the children to live in Australia at a future date. The orders proposed a return of the parties to Sweden. Should there be a future separation between the parties in Sweden, then it was agreed the mother and children could return to Australia. Further, the mother was to be permitted to return the children to Australia by 1 March 2013, in any event.
f)The father instructed Santone Lawyers on 29 March 2012.
g)Exhibit R3 is a series of notes taken by the lawyer for the father in relation to his attendance upon that firm on 29 March 2012.
h)A conference was arranged and took place on 29 March 2012 between the father, his solicitor and Mr Richard Schonell of senior counsel.
i)Exhibit R3 suggests representations from the mother’s solicitor to the father’s solicitor that the mother would return to Sweden on 30 March 2012 if the consent orders were signed. The notes indicated there were attempts to negotiate orders satisfactory to the father.
j)On 29 March 2012 the mother’s solicitors sent a letter by facsimile to the father’s solicitors. This letter set out modifications to the proposed consent orders which were agreed to by the mother. They reflect similar notes in Exhibit R3. The letter makes clear the mother was intending to return the children to Sweden.
k)On 30 March 2012, at 13.21 hours, the father’s solicitors sent a letter, by facsimile transmission, to the mother’s solicitors. The part of particular relevance is as follows:
Our client instructs us that your client has changed the flight details for the children. Our client has been informed by the airline and by your client that your client intends to return to Sweden with the children on 16 April 2012.
Our client is taking all steps to ensure that seats are still available for the children on Etihad flight number … departing Sydney at 3.50 pm this afternoon.
Our client regards your client’s unilateral decision to change the flights and not permit the children to return to their home in Sweden today, as scheduled, to be an act of wrongful retention. Our client will now be invoking the Hague Convention to ensure the children’s immediate return to Sweden.
Our client has met with your client to discuss these issues. He has been waiting at the maternal grandparents’ house in [Sydney’s North Shore] to collect the children but nobody is home.
Our client is still hopeful that the children will be handed over to him to travel and there is still time for your client to bring the children to the airport. In the event that this does not occur, our client will return to Sweden alone. The children’s passports will be left with us. Our client instructs us that he does not consent to your client travelling alone with the children. He will not release the passports to your client. Our client will return to Australia to accompany the children to Sweden.
The evidence contained in the affidavit of Mr C, sworn 12 July 2012 and relied upon by the applicant, attests to events on 29 and 30 March 2012 as witnessed by him. He says the father attended upon the mother’s parents’ home on 30 March 2012 at about midday. The father and Mr C waited for about 10 minutes until the mother and children arrived. After a short while the father left without the children. Mr C heard the father ask the mother to accompany him to Sweden on that day. The mother advised she had changed the tickets to 16 April 2012 and she would not accompany him.
Although it is not clear from Mr C’s affidavit, it seems entirely probable that the father gave Mr C the children’s passports as the father boarded his flight, which was to depart at 3.50 p.m. on 30 March 2012. Mr C then delivered the passports to Santone Lawyers at the request of the father. A receipt for the handing over of the passports has been read in evidence.
The words in the third-last paragraph of the first page of Exhibit R2, in context, probably suggest the children’s passports were with the father’s lawyers in their office in York Street, Sydney, at 13.21 hours on 30 March 2012. The second-last paragraph on that page makes clear that the father had placed a condition upon the return of the children to Sweden which meant the mother was incapable of herself returning them on that day or on the date the tickets had been allegedly changed to, namely 16 April 2012. To the extent that it is necessary to do so, I find that it was reasonable in the circumstances of the case for the mother and/or her lawyers to hold the understanding, if they did, that at 13.21 hours on 30 March 2012 the children’s passports were in the offices of Santone Lawyers.
The passports for the children did not leave the office of Santone Lawyers until after 30 May 2012 and only after an order was made by this Court.
On 3 April 2012 the father’s solicitors, Santone Lawyers, sent a letter by facsimile transmission to Air Etihad. The letter complained about the airline’s actions in changing the bookings for the mother and children contrary to the instructions the father had given the airline on 26 March 2012, the instruction being that the bookings were not to be changed without his direct authorisation. The letter confirms the father, through his solicitors, had demanded the airline reinstate the children’s seats for the flight on 30 March 2012 when he ascertained on that day that the bookings had been changed. It confirms advice from the airline that the seats had been allocated to other passengers and that there were no other seats available. The letter concludes with the following sentence in the penultimate paragraph:
The airline, in releasing his daughter’s seats on 30 March, frustrated his opportunity to travel with his daughters as he was legally entitled to do.
The only available inference from that sentence is that the solicitors were instructed by the father that the airline was unable to offer the father two seats for the children for the flight on that day at the time of boarding.
Exhibit A2 is a document created by Santone Lawyers dated 30 March 2012 confirming receipt by the firm of the children’s passports. No time is noted thereon.
Page 127 of the respondent’s affidavit of 6 July 2012 contains a copy of a letter from the respondent’s solicitors to Santone Lawyers dated 24 April 2012. That letter seeks confirmation that the father’s instructions, as set out in the letter of 30 March 2012 (Exhibit R2) remain his current instructions.
The father’s solicitors replied to the letter from the mother’s solicitors on 29 April 2012 (see page 129 of the respondent’s affidavit, 6 July 2012). In that letter the following appears:
We are instructed that your client has stated that she has been unable to travel because we hold the children’s passports. Your client has not made any approaches to us requesting the return of the children’s passports.
No offer to release the passports to the mother was made. Rather, the letter states:
Our client is in a position to be able to return to Australia on short notice. He requests that your client release the children so that they can return to Sweden with him. Any proceedings regarding the children should be conducted in Sweden.
To the extent it is necessary to do so, I find the mother was entitled to conclude from that letter that the only basis upon which the father was going to permit the children to leave Australia was in his charge.
On page 78 of the application, the father’s solicitor in Sweden, by a letter dated 28 May 2012 to the Central Authority, put the Central Authority on notice that the father had taken control of the children’s passports and still retained them.
The narrative provided by the father to the Central Authority, which appears at page 13 of the application of the Central Authority, did not divulge that he had control of the passports on 30 March 2012 and would not release them to the mother so that she might return the children to Sweden. Given the oblique manner in which the Central Authority in Australia was advised of the father’s control of the children’s passports, they would certainly be excused from not having a proper understanding of exactly what the father had done in relation to the children’s passports on and before 30 March 2012.
The father commenced proceedings in the Swedish courts on 12 April 2012. He sought custody of the two children.
The father’s Australian solicitors wrote to the mother’s solicitors on 29 March 2012. That letter appears at page 76 of the respondent’s affidavit sworn 6 July 2012. The letter sets out matters of history as seen by the father. It outlines that the father proposed to return to Sweden on 30 March 2012 with the children. To that end it states the father would present himself at 11 a.m. to collect the children to travel to the airport. The father gives notice that should the children not be permitted by the mother to travel with him on 30 March 2012, he would invoke the Hague Convention immediately upon his return to Sweden. It is relevant to note that at paragraph numbered 11 of the letter the following appears:
11. Whilst our client acknowledges that the parties have had difficulties in their relationship, he is still hopeful that their relationship can be salvaged and do whatever he can to bring about this outcome. He hopes that they can return to counselling upon their return to Sweden.
It should be noted that by 30 March 2012, particularly following each of the respondent and the father retaining lawyers, it is reasonable to conclude that the relationship between the parties was very strained and on the point of being permanently fractured.
The letter of 29 March 2012, as above referred to, notes comments by Mr Paul (the mother’s solicitor) and therefore I assumed (in light of the other evidence) that it was written after the discussions had taken place between Ms Santone and Mr Paul as noted in the handwritten notes of Ms Santone which appear in Exhibit R3.
Towards the end of the letter from Ms Santone (as it appears on page 77 of the respondent’s said affidavit) the following paragraph appears:
We note the comments of your Mr Paul that in light of our client’s position, your client’s position now is that she intends to return to Sweden, separate from our client and commence proceedings for relocation in Sweden. Should this be the unfortunate eventual outcome, we agree that this is the most appropriate jurisdiction to resolve the parties’ family law issues.
Thus the father was on notice on 29 March 2012 that the mother would not be travelling to Sweden with him on 30 March 2012. This is an important fact, when aligned with the evidence of the actions of the father thereafter in relation to the control of the children’s passports.
On 24 July 2012 the father swore an affidavit, which is relied upon in this case by the applicant. At paragraph 57 of that affidavit he answers the respondent’s affidavit as it refers to the father retaining the children’s passports on and from 30 March 2012. That affidavit is as follows:
Holding onto the children’s passports
57. In my affidavit sworn 23 July 2012, and also referred to in [the mother’s] first affidavit sworn, reference is made to the fact that after [the mother] returned the passports to me, I kept them with my solicitor Tina Santone. In particular, I refer to the documents at pages 77, 83, 97 and 129 of [the mother’s] first affidavit.
58. The reason that I instructed my solicitor to write to [the mother’s] solicitor in those terms is because I obtained advice from a barrister, Mr Richard Schonell, through my solicitor, on 29 March 2012 concerning what I should do in the escalating situation with the children in the event that I would be hindered from bringing [the children] back to Sweden on 30 March 2012. I received advice that I should not release the children’s passports to [the mother] because in a number of cases, after the passports have been released to a parent in similar circumstances, the parent will disappear with the children to a non-convention country, where it would be impossible for me to recover the children. I was advised that the best approach is to offer to come back to Australia on short notice and escort the children, and [the mother] if she wished, back to Sweden. I acted on that advice.
59. Further, I sought advice from the Swedish Ministry of Foreign Affairs. The advisor from the Ministry advised me that if [the mother] requested me to hand the passports back to her to travel home with the children, I would need to make a risk assessment to decide whether to hand the passports back to [the mother], or to immediately travel to Australia to escort her and the children back to Sweden. In the Hague application that I filed I made it very clear that I would travel to Australia on very short notice to assist in this way. My solicitor also wrote to [the mother’s] solicitor to that effect.
60. I was also by my legal advisor in Sweden, Jessica Sandberg, that it was common in these cases for a parent to change the ticket to a slightly later date to try to give the impression that they are planning to come back, and later there is another excuse invented why they could not travel then either, in order to prevent the other parent from filing a Hague application. That is one of the reasons why I immediately filed a Hague application when I returned to Sweden. I was also informed by the Swedish embassy in Australia that if [the mother] contacted the Swedish authorities, or me/my solicitor, that it was possible for the Swedish Embassy to issue an emergency passport. I was advised that that can be organised for anyone having custody of a child who is a Swedish citizen. I was advised that the emergency passport can be issued on the day of applying for the passport and is valid only to travel going to a certain end destination. It can be between two countries or on a certain route if stop over(s) are required. Therefore, it is always possible to get back to Sweden on an emergency passport even if one does not have the normal passport for one’s child. [The mother] has therefore had the opportunity to allow the children to return to Sweden on every day since 30 March 2012 if she wanted. Emergency passports can be issued by Swedish embassies and consulates abroad.
The document, referred to by the father in the portion of the above affidavit as being on page 97 of the mother’s affidavit, is a copy email which she sent to friends, presumably in Sweden. The email is dated 2 April 2012 and advises that the mother and children will be returning to Sweden on 17 April 2012. The email expresses enthusiasm at returning to Sweden. It is consistent with the other evidence of the father, that he knew on 30 March 2012 that the mother had changed the airline bookings for herself and the children to leave Australia on 16 April 2012.
The mother annexed to her affidavit at pages 119, 121 and 123 copies of emails she sent to the father personally on 13 April 2012, 17 April 2012 and 20 April 2012. The mother in paragraph 184 of her affidavit says the father did not respond to any of her emails. The father, by his affidavit sworn 23 July 2012, answers allegations raised by the mother’s affidavit sworn on 6 July 2012, although he has not specifically identified paragraphs in her affidavit. He does not deny he received the mother’s said emails and that he did not reply to them. The father has not annexed to his affidavit any emails said to have been sent to the mother by him after 30 March 2012.
Relevant law
Permanent stay
A permanent stay, if granted, would have the effect of concluding the proceedings commenced on 30 May 2012 by the applicant. It is not argued that the Court does not have power to make such an order.
Orders made in this court which stay proceedings of this court, although not numerous, are not novel. Such orders are sought from time to time where there are competing proceedings between the same parties in different countries – see Henry and Henry (1996) FLC 92-685 and Dobson and Van Londen (2005) FLC 93-225.
In Walton v Gardiner (1993) 177 CLR 378, in the judgment of Mason CJ, Deane and Dawson JJ, the following is stated:
22. None of the members of the Court of Appeal accepted the Department's narrow view of the extent of the jurisdiction of the Supreme Court to order a stay of proceedings on abuse of process grounds. Gleeson CJ ((19) (1991) 25 NSWLR, at p 200.) and Kirby P ((20) ibid, at pp 204-205.) considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered ((21) ibid, at pp 218, 220-221.) that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct.
23. The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail ((22) See, e.g., Metropolitan Bank v. Pooley (1885) 10 App Cas 210, at pp 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; [1964] HCA 69; (1964) 112 CLR 125, at pp 128-130.). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them ((23) See, generally, Voth v. Manildra Flour Mills Pty. Ltd. [1990] HCA 55; (1990) 171 CLR 538.). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings ((24) See, e.g., Reichel v. Magrath (1889) 14 App Cas 665, at p 668; Connelly v. D.PP. (1964) AC 1254, at pp 1361-1362.). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police ((25) [1981] UKHL 13; (1982) AC 529, at p 536.) as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".
In Ferrall and McTaggart (Trustees for Sapphire Trust) & Ors v Blyton (2000) FLC 93-054, the Full Court of this court determined as follows in paragraph 96 (quoting from the earlier Full Court decision of Barblett DCJ, Lindenmayer and Finn JJ in the matter of Bigg v Suzi (1998) FLC ¶ 92-799 :
5.5 That this Court has the necessary inherent power to dismiss or permanently stay an application which cannot succeed, was recognised by Nygh J in Aldred (1986) FLC ¶ 91-753 and affirmed by the Full Court in Spellson (1989) FLC ¶ 92-046 . In Aldred, in addition to referring to the authorities concerning the inherent powers of this Court, his Honour referred to Halsbury's Laws of England 4th Edition vol 37 Practice and Procedure, paragraph 435, where it is said:
‘So under its inherent jurisdiction the court may strike out the whole or part of the indorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process or which must fail or which the plaintiff cannot prove, and which is without a solid basis ...’
5.6 It is also stated in Halsbury that the power to strike out, stay or dismiss under the court's inherent jurisdiction is discretionary.
5.7 Further, pursuant to s 38(2) of the Act, the Family Court may, where its own rules are insufficient, apply the rules of the High Court. Included in those latter rules is O 26 r 18 which is as follows:
‘(1) The Court or a Justice may order a pleading to be struck out on the ground that it does not disclose a reasonable cause of action or answer.
(2) In that case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Justice may order the action to be stayed or dismissed, or judgment to be entered accordingly, as is just.’
5.8 In Aldred (supra), Nygh J relied upon s 38(2) of the Act to draw upon O 63 rr 1 and 2 of the High Court Rules, which are as follows:
‘1. The Court or a Justice may, at any time after the instituion of a proceeding, direct a stay of proceedings, either as to the whole or part of the proceeding or as to any proceedings under a judgment or order given or made in the proceeding.
2. An application to stay proceedings on the ground that there is not a reasonable or probable cause of action or suit, or that the proceeding is vexatious and oppressive or is an abuse of the process of the Court, may be made at any time and whether the plaintiff does or does not admit the allegations of fact, if any on which the application is founded.’
5.9 It will be seen that the powers in O 26 r 18 and O 63 rr 1 and 2 are discretionary, and that in the former those powers include a power to dismiss an action where either a pleading is 'struck out' or the action is shown to be frivolous or vexatious.
5.10 The principles which govern the exercise of that discretion, be it exercised under O 26 r 18, or under the inherent power, [or, we would suggest, under O 63 rr 1 and 2] were recently stated by Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 , as follows:
‘The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law
for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418 .
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f , per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [ Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 .]
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [ Coe v The Commonwealth (1979) 53 ALJR 403 ; Wickstead v Browne (1992) 30 NSWLR at 5-7 .] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth (1979) 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [ Church of Scientology v Woodward (1980) 154 CLR 25 at 79 .] A question has arisen as to whether O 26, r 18 applies to part of a pleading. [ Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 8 .] However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.’
In the Full Court of this court, a decision in the matter of Pelerman & Pelerman (2000) FLC 93-037, the court in dealing with an appeal against the refusal by a trial judge to summarily dismiss an application stated principle in relation to such applications. That decision was referred to by the Full Court in Ferrall & McTaggart & Ors v Blyton at paragraphs 97 and 98 of that judgment as follows:
97. In Pelerman v Pelerman (2000) FLC ¶ 93-037 , a differently constituted Full Court delivered judgment while the present case has stood reserved. In para 46 (FLC ¶ 93-037 at 87,582), Ellis, Lindenmayer and Rose JJ summarised the principles in Bigg v Suzi (supra) in the following manner:
‘(a) The power for summary dismissal is a discretionary one.
(b) Relief “is rarely and sparingly provided”.
(c) The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d) A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e) “If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.
(f) “If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.''
98. Counsel for the respondent, we think correctly, pointed out that while the Court has jurisdiction summarily to dismiss or stay and application, its exercise is reserved for a case in which it can be demonstrated that the substantive application cannot possibly succeed. He pointed out that in a case such as the present, the question is whether, assuming in favour of the husband, the matters of fact on which he relies, nonetheless his case, as a matter of law is so clearly untenable that it cannot possibly succeed. In fact in the present case, the factual version advanced by the husband had not been contradicted by the applicants who filed no material before his Honour nor did they seek to do so on appeal. O'Ryan J took the view that the applicants had not satisfied this test and for the reasons hereafter appearing we think he was undoubtedly correct.
In Norman and Howarth (2003) 180 FLR 1, I considered the above two authorities. I then said as follows. To my understanding and knowledge, no court of superior record has corrected my determination in the following terms:
65. There are examples of this Court (as above emphasised in para 98) using or referring to the terms “summary dismissal” and “stay” or “permanent stay” in the same breath, as if they were one and the same thing. With respect I would disagree with such a conclusion. I suspect the two terms have been linked together because, the net effect of both outcomes to the applicant in the substantive proceedings sought to be dismissed or stayed, is effectively the same. Namely, that the proceedings can no longer continue.
66. Proceedings for the relief of “Permanent Stay”, when based upon the conclusion that to allow the proceedings to continue would amount to an “abuse of process”, seem to me to require a different approach to an application for “summary dismissal”, as referred to in Ferral. In the first place it is necessary for the applicant, seeking the relief based upon “abuse of process”, to demonstrate by evidence, or the Court record, the facts or circumstances which exist to warrant the remedy. This may involve the applicant for relief relying upon evidence filed or adduced by the respondent to the stay application or by the applicant. The nature of the hearing will be determined by the nature of the evidence to be relied upon by the parties. The proceedings may proceed summarily or may involve the examination and cross-examination of witnesses.
67. The other substantial difference between a case for summary dismissal and a stay or permanent stay is that in the latter case it is not necessary to establish that the substantive proceedings could not possibly succeed.
68. In the case before me the parties determined how the case was to proceed. In an adversarial system the Court will not interfere in the conduct of parties cases unless called to do so by one of the parties or through the application of Rules of Court, case management or practice or some applicable statutory provision.
69. In the case before me the evidence relied upon by the husband to ground his case is mostly non-contentious.
70. In her oral submissions the wife’s counsel conceded that the husband would bear an onus to establish a case of “abuse of process”. It was therefore conceded that the husband could rely upon evidence placed before the Court by him which went to that issue.
In this case, as I have said, the respondent relies upon the evidence of the applicant, which includes the evidence of the father. The respondent only relies upon evidence which is sourced in her evidence where that evidence is incontrovertible and/or where the father, to the extent he is able to do so, has had the opportunity to respond to the evidence relied upon and has failed to do so.
In order to fully comprehend the case brought by the respondent, it is necessary to understand what the applicant must establish in the proceeding as a prerequisite to the court making an order for the return of the children to Sweden.
In the application the Secretary of the Attorney General’s Department alleges in paragraph 7.6, which paragraph appears under the heading, “Details Concerning Children’s Retention”, the following:
On 30 March 2012 the father sought to return to Sweden with the respondent mother and the children. However, the respondent mother refused to return to Sweden on that day and she refused to permit the children to return to Sweden on that day.
Regulation 16(1A) sets out the criteria for determining if a retention in Australia of children is “wrongful” for the purpose of regulation 16(1), which provides for the mandatory requirement to make a return order subject only to sub-reg (3). I have set out reg 16(1A), earlier in these reasons.
Regulation 14(1) and reg 15(1) need to be considered in determining this application.
14 Applications to court
(1) If a child is removed from a convention country to, or retained in, Australia:
(a) the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders:
(i) a return order for the child;
(ii) an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention;
(iii) an order for the issue of a warrant mentioned in regulation 31;
(iv) an order directing that:
(A) the child not be removed from a specified place; and
(B) members of the Australian Federal Police prevent the child being removed from that place;
(v) an order requiring that arrangements be made (as necessary) to place the child with an appropriate person, institution or other body to secure the welfare of the child, until a request under regulation 13 is determined;
(vi) any other order that the responsible Central Authority considers appropriate to give effect to the Convention; or
(b) a person, institution or other body that has rights of custody in relation to the child for the purposes of the Convention may apply to the court, in accordance with Form 2, for an order mentioned in subparagraph (a) (i), (ii), (iii), (iv) or (v).
(2) If the responsible Central Authority, or a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention, has reasonable grounds to believe that there is an appreciable possibility or a threat that the child will be removed from Australia, the responsible Central Authority or person, institution or other body may:
(a) apply to the court, in accordance with Form 2, for an order for the issue of a warrant mentioned in regulation 31; or
(b) apply to the court for an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention.
(3) If a child is wrongfully removed from Australia to, or retained in, a convention country, the responsible Central Authority may apply to the court, in accordance with Form 2, for:
(a) an order that the responsible Central Authority considers necessary or appropriate to give effect to the Convention in relation to the welfare of the child after his or her return to Australia; or
(b) any other order that the responsible Central Authority considers appropriate to give effect to the Convention.
(4) If a copy of an application made under subregulation (1), (2) or (3) is served on a person:
(a) the person must file an answer, or an answer and a cross-application, in accordance with Form 2A; and
(b) the applicant may file a reply in accordance with Form 2B.
15 Orders
(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a) make an order of a kind mentioned in that regulation; and
(b) make any other order that the court considers to be appropriate to give effect to the Convention; and
(c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
(2) A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows.
(4) If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is filed:
(a) the responsible Central Authority or Article 3 applicant who made the application may ask the Registrar of the court to state in writing the reasons for the application not having been determined within that period; and
(b) as soon as practicable after being asked, the Registrar must give the statement to the responsible Central Authority or Article 3 applicant.
In order to complete the picture, the court is required to have regard to the purpose of the Regulations which are stated in reg 1A:
1A Purpose
(1) The purpose of these Regulations is to give effect to section 111B of the Act.
(2) These Regulations are intended to be construed:
(a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and
(c) recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
The preamble to article 1 of the Convention states the purpose of the Convention is to “ensure their (children’s) prompt return to the state of their habitual residence”. This, of course, relates to children who have been wrongfully removed or retained in countries which are not their habitual residence.
It should be noted that nowhere in any of the above referred to regulations and/or preamble is there any compulsion to cause the return of children to their habitual residence under the control of the parent or body who made the request which initially commenced the procedure giving rise to the application to the Court, in this case, the father. Further, it should be noted, the Regulations do not mandate the return of the children to a particular parent in the country of their habitual residence.
Thus the requirement of the father that he must either have the children delivered to him on 30 March 2012 for the purpose of travelling to Sweden, or alternatively, that he must accompany the mother and children on that journey, assumes some importance.
Having said that, it is clear that if the Court was to determine the children should be returned to Sweden in the manner sought by the father, there would be clear power to make such an order. Provided that orders are made within the terms or the provisions of reg 15, there is no other restriction on the scope or nature of the orders the Court can make.
I should mention here, the Full Court has delivered decisions in relation to the scope and extent of the court’s ability to make orders which are conditional. In the judgment of Kay, Warnick & Boland JJ in McDonald & Director-General, Department of Community Services NSW (2006) 36 Fam LR 468, their honours said:
26. The extent of the jurisdiction to impose conditions was discussed in the majority judgment of the High Court in De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640; 139 ALR 417; 20 Fam LR 390; FLC 92–706, where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said (citations omitted):
It should also be noted that, in its present form, the effect of reg 15(1) is to provide that, in making an order in relation to the return of a child from Australia, the court may include in its order a condition the court considers appropriate to give effect to the Convention.
In delivering the leading judgment in the Supreme Court of Canada in Thomson v Thomson, La Forest J said:
Given the preamble’s statement that “the interests of children are of paramount importance”, courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L [(Child Abduction) (Psychological Harm)], C v C [(Minor: Abduction: Rights of Custody Abroad)], P v P (Minors) (Child Abduction); and Re A (A Minor) (Abduction). Through the use of undertakings, the requirement in Art 12 of the Convention that “the authority concerned shall order the return of the child forthwith” can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for a determination by the court of the child’s habitual residence, and any short-term harm to the child is ameliorated.
Both the Supreme Court of Canada and the English Court of Appeal in C v C (Minor: Abduction: Rights of Custody Abroad) were concerned with Convention applications raising an issue as to whether the return of the child would expose the child to grave risk of psychological harm. In the latter decision, undertakings were given to the Court of Appeal by the father seeking return of the child to Australia. Butler-Sloss LJ said:
These undertakings are crucial to the welfare of the child, who has been sufficiently disrupted in his removal from his home and his country and needs as a priority an easy and secure return home. The mother has been the primary caretaker throughout his short life, and since the parting of the parents when he was three for all but access periods his sole caretaker. If possible, she should for his sake and not for hers be with him and help him to readjust to his return. The father should not be instrumental in putting obstacles in the way of that easy return, or make difficulties once the child is back. It is essential that the judge hearing the future issues of custody and access or indeed the Australian Family Court should have the opportunity to consider the welfare of the child as paramount without emergency applications relating to the manner of the return of the child.
It is impossible to identify any specific and detailed criteria which govern the exercise of the power whereby the court may impose such conditions on the removal of the child “as the court considers to be appropriate to give effect to the Convention”. Many of the criteria which may be applicable in a particular case are illustrated in the above passages from the Canadian and English decisions. The basic proposition is that, like other discretionary powers given in such terms, the court has to exercise discretion judicially, having regard to the subject matter, scope and purpose of the regulations.
Meaning of “remove” and “retain”
In the judgment of Hanbury-Brown & Hanbury-Brown v Director General of Community Services (1996) FLC 92-671, their Honours, Ellis, Lindenmeyer and Finn, set out the following in relation to the definition of “retention”:
5.32 Turning to article 3, it is true to say that, looked at in isolation, the words “removal or retention” used therein do not necessarily import physical removal from or retention in a place, as distinct from removal from or retention as against a person. Still less do they necessarily import removal from one state to another or retention in one state as against another. However, this article is not to be construed in isolation from the rest of the Convention, but in the context created by the other provisions of the Convention, including its preamble, and in light of its objects as defined in article 1. Viewed in that context and in that light it becomes tolerably clear, in our opinion, that the word “removal” in that article is intended to convey the same concept of physical movement of children from one state to another as is conveyed by article 1(a), and that “retention” likewise is intended to convey the same concept of retention in one state as against another, and that in each case the state from which the “removal” has occurred or against which the “retention” is practised is the state of the children’s habitual residence “immediately before” the removal or retention occurred. Thus this article, whilst undoubtedly a “choice of law” article, as submitted by counsel for the wife, is also much more. It not only identifies the law by which the wrongfulness of a removal or retention is to be judged, it also defines the conduct which constitutes “removal” or “retention” for the purposes of the Convention, namely removal from one state (being that of the child’s habitual residence) to another, or retention in the latter after removal from the former, in each case subject to the requirement that that conduct is in breach of the custody rights of a person.
5.33 We are fortified in our above conclusions by the knowledge that similar conclusions have been reached by various members of the English Court of Appeal and of the House of Lords. Most notable, in that respect, are the opinions of 2 of the 3 members of the Court of Appeal and of all 5 Law Lords in In re H (supra). Before coming to that case, however, reference may be made to some earlier dicta in judgments of the Court of Appeal which also support our conclusions. For example, Lord Donaldson of Lymington, M.R. (with whom Staughton, L.J. and Sir Roger Ormrod agreed) in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562 at 567 said:-
“The mischief at which the Convention and the Act of 1985 are directed, and it is a very serious mischief, is the wrongful removal of a child from, or its wrongful retention outside, the territorial jurisdiction of the courts of a Convention country. Where this occurs, it is the duty of the courts of any other Convention country where the child may be to order its return. Furthermore, this duty is almost absolute. However, the operative word is ‘wrongful’ and this depends in part upon the wording of the Convention as incorporated in the Act of 1985 and in part, in this case, upon the law of Western Australia.”
Likewise, Balcombe, L.J. in In re E (A Minor) (Abduction) [1989] 1 FLR 135 at 142, said:-
“... 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.”
Further, retention under the terms of the Hague Convention (and subsequently the Regulations for the purpose of the present application) has been held to be an act or omission which causes the retention rather than a continuous state of affairs. Lord Prosser stated in the judgment of Kilgour & Kilgour (1987) SLT 568, as follows:
I do not consider that the convention is as unambiguously drafted as it might have been. I have, however, come to the view that the contentions for the respondent are well founded. As counsel for the respondent submitted, the emphasis in the statute and the Convention is upon abduction. It seems plain to me that any act dealing with abduction, in the sense of removal, would sensibly attempt to regulate in the same way as it regulates removal those cases where there is an act of omission or commission which achieves the same result as removal and constitutes an inversion of existing custody rights. There will be a variety of situations in which one has an equivalent of abduction by removal. There is perhaps no one word which is ideally suited to describing all such equivalents. However, the word “retention” appears to me to be quite naturally used and quite an accurate expression to use in such a context and for such a purpose. After any such initial act, whether by positive removal or by some failure to hand over or return a child, there will be a state of affairs which can appropriately be described as retention. In that sense, it has the continuing meaning which was emphasised by counsel for the petitioner. I would accept that that is a natural meaning for the word. I do not, however, consider that it is an unnatural use of the word “retention” to use it for an initial act of omission or commission. The submission by counsel for the petitioner that Article 13 could be read as referring to the date of the start of retention needs very little-rephrasing to amount to a concession that in speaking of the date of retention that article is speaking of an initial retention without regard to continuance. If in Article 12 use of the word "retention" thus refers to initial intention it should in my view be so understood elsewhere in the Convention and in the Act unless there was some very firm indication to the contrary. Even in Article 13 reading the article as a whole it seems to me that the references to "the time of" retention and to events occurring "subsequently" positively bear out the construction which I have suggested is appropriate for Article 12.
The question raised in this application is when the retention, be it wrongful or otherwise, took place. The form 2 application filed by the central authority sets out that the retention happened on 30 March 2012 (which is supported, albeit for different reasons, by the father), however, counsel for the mother argued that if there was retention it must have occurred after the expiration of the 30 March 2012. In relation to the approach to be taken by the court in relation to examining when the act of wrongful retention occurred, the following passages from LK v Director General Department of Community Services (2009) 237 CLR 582 was drawn to the attention of the court.
44. It is, however, not necessary to examine the decision in SK in detail. Rather, it is sufficient to observe that in Punter v Secretary for Justice[59], the effect of the decision in SK was described[60] in the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O'Regan JJ) as holding that the inquiry into habitual residence is "a broad factual inquiry". The plurality went on[61] to say in Punter:
"Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state".
As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified[62] by Lord Brandon in re J, to decide the question of habitual residence "by reference to all the circumstances of any particular case" (emphasis added).
The abovementioned extract of judgment related to the determination of a child’s habitual residence. It was, however, submitted by counsel for the father that it could equally be applied to the subject determination of wrongful retention. He submitted that this judgment indicated a shift in the approach by the High Court from the examination of facts solely to a broader inquiry as to the circumstances surrounding the facts. The Full Court in Murray v The Director of Family Services ACT (1993) FLC 92-416 in relation to the interpretation of the terms “removal” and “retention” said as follows:
In this regard we agree with the argument of the Solicitor General that the terms "removal" and "retention" are alternative and discrete past events for the purposes of the Hague Convention and we note that this is also the approach which has been taken by the House of Lords in Re H and S (1991) 3 All ER 230.
In that case, the issues both before the Court of Appeal and the House of Lords were firstly whether, even if removal was to be regarded as a specific event which occurred on a specific occasion, retention was a state of affairs beginning at a specific time but continuing from day to day thereafter.
Their Honours then went on to say:
Regulation 16(3)(a) provides as follows:
"A court may refuse to make an order under sub-regulation(1) or (2) if it is satisfied that -
(a)the person, institution or other body having the care of the child in the convention country from which the child was removed was not exercising rights of custody at the time of the removal of the child and those rights would not have been exercised if the child had not been removed, or had consented to or acquiesced in the child's removal;"
Remembering for the purpose of the Regulations that removal encompasses both removal and retention within the meaning of the Hague Convention, it is nevertheless clear that the court is being asked by the sub regulation in the case of a removal, to look at the time when the removal occurred, and in the case of retention, to look at the situation at the time that the retention first occurred.
The question of the date of retention was addressed in the judgment of O’Reilly J in Director-General, The Department of Families (QLD) v BW (2003) 32 Fam LR 332.
31Regulation (3)(2) defines “retention of a child” by reference to a breach of the rights of custody of a person, actually exercised at the time of the retention, or which would have been exercised but for the retention.
32The effect of the definition is that there can be no retention until there is an actual breach of another’s rights of custody. Significantly, reg 3(2) does not speak of threatened retention, but of actual retention.
33Where a child is taken to another country for an agreed period of time, it would appear that there can be no retention until the expiry of that period of time. In Murray v Director, Family Services, ACT (1993) FLC 92-416 (FC) Nicholson CJ and Fogarty J (with whom Finn J agreed) at 80,252 – 80,253 accepted the submission of the Solicitor-General for the Commonwealth that “removal” and “retention” are alternative and discrete events. Their Honours referred with approval to the speech of Lord Brandon in Re H & Anor (Minors)(Abduction: Custody Rights) [1991] 2 AC 476 (HL) at 500B – C:
“…For the purposes of the Convention, removal occurs when a child, which has previously been in the state of its habitual residence, is taken away across the frontier of that state, whereas retention occurs where a child, which has previously been for a limited period of time outside the state of its habitual residence, is not returned to that state on the expiry of such limited period. …”
34The Full Court in Murray went on to observe at 80,253 that the Travaux Preparatoires to the Convention, para 108, provided:
“….The fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child’s stay in a place other than that of its habitual residence.”
35However, in Murray, the Full Court was not expressly dealing with the question of whether retention may occur otherwise than by a failure to return a child upon the expiry of an agreed period.
36In In the marriage of Artso and Artso (1995) FLC 92-566 Mushin J said at 81,638:
“…At the moment that the husband refused the wife permission to return the children to their country of habitual residence, he was wrongfully retaining them contrary to the provisions of the Convention.”
37However, as I read that decision, it is not authority for the proposition that, where a child is taken to another country for an agreed period of time, retention can occur on the date on which the parent with the child in the other country threatens not to return the child at the end of the agreed period of time. Mushin J’s statement must be read in the context of the facts of that case. The habitual residence of the children was England. The husband and the wife came with the children to Australia on the basis of an agreement that they would stay for at least one year (father’s version) or that they would stay for up to one year (mother’s version). Shortly after the arrival in Australia the parents separated and the mother decided that she wished to take the children back to England. The father refused permission. Mushin J preferred the mother’s version of the agreement, deciding that the father’s refusal amounted to a retention. Alternatively, he found that if the father’s version of the agreement was correct, the moment the marriage broke down the agreement between the parties was at an end. It was in this context that Mushin J made the observation set out above. Mushin J was not in that case dealing with the circumstance of a child taken out of a country of habitual residence for an agreed (in the sense of fixed) period of time. Thus, the date of the refusal to permit return to the country of habitual residence was found by Mushin J to be the date of retention, because there had been no actual fixed or agreed date of return.
38There is no reason in this case, nor authority to support the proposition, that the Court should find that the retention occurred on the date on which the mother told the father that she would not return the child. According to the agreement, the child was not due to be returned until 20 January 2002. Despite the mother’s earlier threats, she was entitled to retain the child until 20 January 2002. There was therefore no wrongful retention until 21 January 2002.
39It follows that the Director-General has proved, and I find, that the date of retention was 21 January 2002, being the day following the agreed date for the return of the child. (emphasis added)
As referred to in the above judgment, the matter of Artso & Artso (1995) FLC 92-566 contains a facts scenario similar to that in the current situation. The parties resided in the United Kingdom but agreed to move to Australia for up to a year. The marriage broke down soon after the parties moved to Australia and the mother wished to return to the United Kingdom with the children. The father refused to return them on the basis of the party’s previous agreement. Mushin J stated:
Although the argument was not put to me on behalf of the husband,
I have considered the proposition that if I am mistaken in
finding the wife's version of the agreement, the parties were in
Australia for at least twelve months on the husband's view and
the wife therefore wrongfully repudiated that agreement. In that
eventuality, there would not be a wrongful retention by the
husband as the children were remaining in Australia in accordance
with the agreement between the husband and the wife. However,
the weakness in that argument is that in the husband's own
affidavit of 21 November, 1990 quoted above in which he swore
that he "advised the Respondent that in my opinion the marriage
had broken down and that I no longer wished to live with her".I find that at the moment that the husband advised the wife that
the marriage was over, the agreement between the parties pursuant
to which they were exploring the possibility of settling In
Australia was at an end by mutual consent. At the moment that
the husband refused the wife permission to return the children to
their country of habitual residence, he was wrongfully retaining
them contrary to the provisions of the Convention.This is supported by foreign case law in relation to Hague matters. Wall J in Re S (Minors) (Abduction: Wrongful Retention) (1994) 2 WLR 228, 239 said as follows:
However, it seems to me that where a parent, as here, announces as part of her case that she does not intend to return the children to Israel at all she can no longer herself rely on the father's agreement to the limited period of removal or retention as protecting her either under article 3 or under article 13(a).As Mr Turner puts it, she cannot have the benefit of the agreement without the burden. Equally, as an issue of fact, it seems to me that the decision which precedes the announcement, even if not communicated to the father, must be capable itself of constituting an act of wrongful retention. I therefore find that, by announcing her intention not to return the children to Israel at all and by asserting that she and the children have acquired habitual residence in England, the mother has wrongfully retained the children in England as at the date of that announcement. On the facts of this case the statement in her affidavit that she has settled and made a life in England is evidence of a previous determination to retain the children in England, which is capable of being fixed in time and which, whilst there is not direct evidence of when it was formed, I fix in time prior to the filing of the originating summons and upon or shortly after receipt of the letter from the father of 6 may 1993.
Galt P in New Zealand also decided in the matter of P v Secretary for Justice (2003) NZLR 54 as follows:
[5] On the assumption that the childrens' habitual residence was Australia at the material time, I take the view that, in effect, to open the way for the New Zealand Family Court to consider the mother's custody application, is to frustrate the operation of the Hague Convention. By deciding that the Convention does not apply because there will be no "retention" of the children in New Zealand until the expiry of the period their father initially agreed they could stay in New Zealand, is to allow their mother to both rely on and repudiate the agreement.
[6] The agreement was that the rights of custody were to be shared. It was in exercise of that joint right and responsibility that the father amicably agreed that the children should be taken to New Zealand and continue to live there for two years, after which they were to return to Australia. The application by the mother to the New Zealand Family Court for custody plainly repudiated the father's agreed right of custody. But relying on the father's agreement in arguing that there will be no "retention" until the two year period has expired is to rely on the exercise by him of his rights of custody for the very purpose of denying them.
The Submissions
The applicant says the wrongful retention occurred on 30 March 2012. The father says the wrongful retention occurred on the 30 March 2012. The respondent says wrongful retention could not have occurred prior to the expiry of 30 March 2012.
The parties and the father all agree there was an agreement between the respondent and the father that they would live in Australia (or holiday lest live be seen to have other connotations) between 1 January 2012 and 30 March 2012. Consistent with that apparent agreement, airline tickets were purchased for those dates and the parties implemented the agreement until 29 March 2012.
On one view of the happenings of 29 March 2012, the mother sought to add terms or conditions to the agreement which had previously, allegedly, not been agreed to by the father or understood by him to be pre-existing conditions. Further, on or shortly before 29 March 2012, the parties de facto relationship may have broken down or been extremely strained.
For the purpose of the application for permanent stay, it is not necessary, in my view, to consider whether a wrongful retention could have occurred before 30 March 2012. It is not the applicant’s case that there was a wrongful retention prior to that date. Thus the Court will be asked to conclude that the wrongful retention took place on either 30 March 2012 on the applicant’s case or, if it took place at all, on the respondent’s case, one minute after midnight on 30 March 2012.
The respondent’s case is that the Regulations, in conjunction with the convention, provide a facility by which children who are wrongfully retained in one convention country be returned to another, where that latter convention country is the children’s state of habitual residence. Implicit in that is that there is no requirement under either the Regulations or the convention that the children can only be returned under the direct control or supervision of the parent whose rights of custody have been affected by the retention.
The respondent argues the applicant’s case could not succeed because of two principal reasons:
a)There was not and could not be a retention which was wrongful on the facts of this case until 31 March 2012, thus the applicant could not establish a wrongful retention on 30 March 2012.
b)Even if there was a wrongful retention on either 30 March 2012 or 31 March 2012, the father’s actions made it impossible for the mother to be able to remove the children from Australia to return them to Sweden. Those actions were to:
i)remove the passports of the children from the use or control of the mother prior to 30 March 2012;
ii)to personally hold the children’s passports until the moment he boarded his flight out of Sydney on the afternoon of 30 March 2012;
iii)to cause the children’s passports to be delivered to his solicitor’s office in Sydney on 30 March 2012;
iv)to provide instructions to his solicitors on or before 30 March 2012 (and continuing thereafter) that once the passports were in their custody, they were not to be released to the mother;
v)to have his solicitor on 30 March 2012 notify the mother’s solicitor in writing on that day (exhibit R2) at 13.21 hours that he does not agree to the children travelling with the mother alone.
In context, that action must be seen to include an objection to her leaving Australia with the children for the purpose of returning the children to Sweden.
It is submitted that the father, having made it impossible for the respondent to return the children to Sweden, either after he boarded his aircraft on 30 March 2012 or at any other time prior to 30 May 2012, caused the central authority in Sweden to make a request to the Australian central authority to issue the subject proceedings on the basis of the mother’s wrongful retention of the children. That action is said to amount to an abuse of process of the most extreme nature, and as such should be met with the sanction of the order sought, namely, the making of a permanent stay.
It is submitted that the applicant was fixed with knowledge of the father’s actions via material which the applicant included in the application filed 30 May 2012. To the extent that the applicant may not have fully appreciated exactly what the father had done, it certainly knew the case being made by the respondent when the Court invited the applicant’s solicitors to take the opportunity to obtain instructions at the conclusion of the evidence placed before the Court by the respondent. That invitation was declined and the respondent says the applicant, bound by the requirements of being a model litigant and shrouded with the protection of immunity from costs orders by operation of the Regulations, should have withdrawn the application.
The respondent further submits the proceedings should be permanently stayed because, confined solely to the applicant’s material, together with other incontrovertible evidence, the applicant could not establish that a wrongful retention took place on 30 March 2012. It is submitted that the action of the father in taking steps to ensure the mother could not leave the country with the children until she agreed to allow him to accompany them or, alternatively, that she permitted them to leave the country with him, must by that action be deemed to have consented to the children remaining in Australia. It is submitted in those circumstances the Court would not, and could not, find the mother had wrongly retained the children in Australia.
There is another limb to the case of the respondent. She submits that the underlying purpose of the convention has been stated by superior courts to be that of selecting the forum for determining parenting disputes. In this case, the mother commenced proceedings in the Family Court of Australia on 27 April 2012 under the Family Law Act. She sought parenting orders. The father entered an appearance in that case unconditionally. Thus the father has consented to the jurisdiction. Lest there be any doubt about that, the father sought leave to file in Court and was granted that leave an Application in a Case on 25 July 2012, the first day of hearing in this application. By that application, he seeks interim parenting orders under the Family Law Act.
Further evidence before the Court states the father also commenced parenting proceedings in Sweden on 12 April 2012. The documents filed in that case, in their entirety, are not before this Court. There is information that the mother has retained lawyers in Sweden to act for her.
The respondent argues that as the father has consented to the jurisdiction of this Court and actively seeks the use of the jurisdiction in obtaining parenting orders, he has negatived the necessity of an action under the convention.
The Applicant’s Submissions
It is submitted by the applicant that the proceedings under the Family Law Act can have no relevance to the proceedings now being considered. The applicant submits it did what was required of it under reg 13. It instituted proceedings. No submission was made as to the circumstances in which the model litigant might decline to proceed further with an application once it is appraised of relevant facts which, if known before the application was issued, might have moved the central authority to decline the request from the convention country as is provided for in the Regulations.
The applicant was unable to refer the Court to any decision made in Australia or any convention country which dealt with the circumstance where the parent in the requesting country controlled the ability of the parent, alleged to have retained the children in another country to be able to return those children to the requesting country voluntarily.
The applicant drew my attention to the fact that at 9.30 p.m. on 29 March 2012 the mother had changed the airline bookings for herself and the children to travel to Sweden on 30 March 2012. This submission went no further than to suggest that that action may have been the time of the wrongful retention. However, it must be conceded that if the mother had a good reason for acting in that way and requiring the change of bookings, such as one of the children being too sick to travel, that may not be found to amount to a wrongful retention where all of the mother’s actions were consistent with her travelling with the children as soon as they were fit enough to do so.
The applicant submits that the father’s actions in controlling and retaining the children’s passports from a date prior to 29 March 2012 until 30 May 2012 had no practical impact upon the mother as she did not intend to try and leave Australia in any event. It was asserted that in an application such as this, the mother has to prove there is a practical consequence of the father’s controlling the passports.
A summary of the applicant’s case can be stated as follows and has been stated by the applicant:
The mother has to establish that the action of the father in fact frustrated or prevented the mother from removing the children from Australia on 30 March 2012; that had she decided at the last moment to return the children to Sweden on 30 March 2012, there were in the circumstances, reasonable steps she could have taken to achieve that result. Further, the Court has to be satisfied that the mother might reasonably have attempted to remove the children that day and, in this case, her clear evidence is that she did not try and she did not intend to try to remove the children to Sweden on that day.
The Submissions of the Father
The father submits that the date of wrongful retention is not confined to considerations of what happened on a particular day, although the Court, it is acknowledged, does need to find that wrongful retention did occur on a particular time, as opposed to finding that it is a continuing event. The determination of wrongful retention involves, it is submitted, a wide ranging consideration of all relevant events. The intent of the parties are a relevant consideration, thus the conveying of an intention to breach an agreement as to a return date would/could amount to a wrongful retention at that time.
In the context of this case, however, the father submits the wrongful retention occurred either at the time the father called at the mother’s residence to collect the children to take them to the airport on 30 March 2012 or later that day, when the flight closed for boarding.
The father submits the mother is not entitled to sit mute and do nothing about returning the children to Sweden, merely because of the action taken by the father in relation to the children’s passports. It is put there is no evidence the mother asked the father’s solicitor to hand over the passports.
The father acknowledged that his evidence was that he took the action with the passports and not consenting to the mother travelling alone with the children out of the country, however, he said he acted so because he feared the mother would take the children to a non-convention country.
In relation to that last submission, I caused a request to issue to both parties and the father, seeking the following:
Can you direct his Honour to any portions of the evidence in which the father sets out any basis on which he held a fear on 30 March 2012 and until 30 May 2012, that the respondent would or could take the children to a foreign country which was not a signatory to the United Nations convention on the civil aspects of child abduction and be able to remain in that country whilst supporting herself and the children financially for an indefinite period? Is there any other evidence before the Court upon which the father might rely in order to show such a fear held by him was reasonable in the circumstances? If there is or is not any such evidence, is that a relevant matter to take into account in the determination of the respondent’s application for a permanent stay?
Each of the parties has now provided me with their submissions in relation to same and I will refer to those shortly.
The father points out the letter marked exhibit R2 does not say the children could only leave the country by travelling with him, it merely points out that he needs to be present.
The father referred to the letter from his own solicitor to Paul & Paul Lawyers, which appears on page 129 of the mother’s affidavit. In that letter, the following appears:
Our client is in a position to be able to return to Australia on short notice. He requests that your client release the children so that they can return to Sweden with him.
The father submits that paragraph should not be read as conveying to the mother that he was excluding her from travelling with the children at that time.
In his submissions in reply for the mother, the mother’s counsel referred the Court to Murray’s case, in relation to the requirement to find a particular time for the wrongful retention to have taken place.
The respondent said it ought not be relevant to the argument put, however, at pages 119, 121 and 123 of the mother’s affidavit are copies of emails the mother had sent to the father in April 2012, requesting details of arrangements to be made for housing and support for herself and the children upon their return to Sweden. All those were ignored or unanswered by the father.
Finally, in relation to the respondent’s application for a permanent stay of the proceedings, the respondent says:
The facts of the case give rise to an absurdity, that being that the mother was obliged to return the children to Sweden, where the father made clear, through his solicitors, that the passports would not be released to allow the mother to remove the children from Australia without the father being present.
The respondent said this would not pass the test of common sense if the facts were presented to the ordinary citizen in the streets of our community.
Further Submissions
The responses to the further requests made by me on 27 July were provided in writing.
The applicant identified paragraphs 58 to 60 of the father’s affidavit, sworn 24 July 2012 as the evidence relied upon to establish the basis of the father’s fear. The applicant submits such fears are commonly held and are not unreasonable. The applicant points to paragraph 98.4 of the father’s affidavit, sworn 23 July 2012, in relation to the mother’s financial means.
The applicant submits that even if the father’s fear was found to be irrational or unjustified, it would not justify the making of a permanent stay.
The father submits that the facts relied upon by him to justify his fears are found in his affidavit, filed 24 July 2012 (see page 10, under the heading “Holding onto the Children’s Passports paragraphs 57 to 60 inclusive).
The father also relies on paragraphs 48 to 52 and 60 of his affidavit, filed 23 July 2012. He submits the mother’s actions in hiding the children’s passports from the father prior to 29 March 2012 indicates she was planning to prevent the children leaving the country with the father on the arranged date. This argument ignores the father’s own evidence that the mother voluntarily produced the passports when the father confronted her about them and then he retained exclusive possession of same. If there be any logical conclusion to the father’s submission on this point, it must surely be that following that action on the father’s part, the mother would have reason to fear the father might seek to remove the children from the country without her being present.
The father, in his submission, also relies on his evidence that he was acting on legal advice.
The father submits that if the Court considers his actions in taking and retaining in his control the children’s passports was appropriate, then the father’s evidence should be sufficient to satisfy the Court his actions were justified.
In response, the respondent submits there is no evidence upon which the father relies which could objectively be seen to justify the father removing and retaining the children’s passports or insisting that the mother not travel alone with the children, and further insisting he must accompany the children on their return to Sweden.
It is submitted there is no suggestion the mother has any connection with any non-convention country. No suggestion as to how the mother may be permitted by any non-convention country to be able to live or work there. No suggestion she has the capacity to support herself indefinitely without working.
It is submitted the father cannot rely on generic advice that parents have fled from Australia to non-convention countries. The risk of the mother doing so must be reasonably and rationally assessed and objectively capable of being seen as a risk of some substance.
The respondent submits that the letter from the father’s solicitors of 29 March 2012 (page 83 of the mother’s affidavit sworn 6 July 2012) suggests by its terms that the father believed the mother and children would be remaining in Australia, not trying to flee to a non-convention country.
It is submitted that even if the father did hold a rational fear, which was capable of being objectively confirmed, it would do nothing more than to explain his extraordinary behaviour in rendering it impossible for the mother to fulfil the very obligation he now relies upon as a basis for the proceeding, namely wrongful retention of the children in Australia.
It is submitted that, whilst the advice from the father’s lawyers may have been opportunistic, his state of mind is entirely irrelevant to the application for a permanent stay. The effect of this submission is that the only applicant before the Court cannot rely on whatever the father’s state of mind might have been as a justifiable abuse of process.
Conclusion
In my view, this is a compelling case for the relief sought by the respondent mother. I agree with the submissions put by the mother that the circumstances of this case amount to an absurdity. To use the words accepted by the High Court, I am satisfied that the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness.
The action taken by the father in this case, in taking possession of the children’s passports prior to 29 March 2012 and retaining control of them in circumstances where he made it clear that the passports would not be released to the mother, made it a practical impossibility for her to be able to return the children to Sweden, either on 30 March 2012 or on 16 April 2012, or at any other reasonable time thereafter.
The only reasonable conclusion arising from the father’s evidence as to why he removed the children’s passports from the mother and then retained them was to render it impossible (if he could) for the mother to be able to remove the children from Australia without his being present and in control of that journey for the children.
The Regulations and the convention to do not require the return of children to Sweden, in this case, only under control of the father. The purpose of the convention is not stated in a manner capable of supporting the father’s approach.
The stated purpose is to “establish proceedings to ensure the prompt return of children to the state of their habitual residence”. In this case, I am satisfied the father’s actions with the children’s passports made the mother’s ability to comply with the requirements of returning the children to Sweden, either on 30 March 2012 or shortly thereafter or at any time before 30 May 2012, impossible.
There is no reasonable basis identified in the evidence upon which the father could have concluded this mother could or would take the children to a non-convention country and be able to remain in that country indefinitely for the purpose of defeating the father’s ability to have a relationship with the children. Yet it is the fear of that occurring, coupled with advice the father said he received on or about 29 March 2012 or 30 March 2012, which he says justified the position he took in relation to retaining control of the children’s passports and specifying the conditions upon which the children were permitted to leave Australia. The father’s other stated reasons for holding the children’s passports, based upon the evidence of his Swedish lawyer, defies any logical connection to his actions of retaining the children’s passports.
I reject the submissions made in this case that the mother was required to take action, such as obtaining substitute or replacement passports for the children. There is no evidence apart from the father’s alleged conversation with a person at the Swedish Consulate in Australia, as to how the mother might do that in the absence of the father’s consent or an order made under the Family Law Act or in any other manner.
In the determination of the respondent’s application, it is unnecessary to find when, if at all, wrongful retention of the children has taken place. It is the circumstance in which the action is brought, coupled with the father’s actions in relation to the children’s passports, giving rise to the conclusion that the father prevented the mother unreasonably from being able to return the children to Sweden which invokes as appropriate the remedy sought by the mother.
The father’s actions also raise an argument with apparent merit, that if you render it impossible to remove children from a country at a time you say their retention in that country is wrongful, as defined by the Regulations / or the convention, then you consent to their continued residence in that country. I form no concluded view about that matter, as it has not been the subject of a submission by each party and the father.
No one would reasonably argue that it would not be an abuse of process to lock someone in your house and then have police charge them with “remain on private property without consent of owner”, should that be a chargeable offence. I do not see the circumstance of the current proceedings as being, in any relevant manner, dissimilar.
The respondent has been critical of the applicant for commencing and/or continuing the current proceedings in the face of the evidence presented to it. I do not conclude the applicant should not have commenced the proceedings on the evidence presented to it at the time the application was commenced. However, I was surprised when the applicant’s solicitors declined my invitation to obtain instructions in relation to the evidence then before the Court at the time the submissions were to commence.
The applicant, as the delegate of the central authority, holds a very special position in relation to these proceedings. Under the Regulations, it is immune to any costs order which ought properly be made against it (reg 7). The central authority by reg 13(2) may decline to take action to secure the return of a child under the convention.
It is incumbent, in my view, on the central authority because of the provisions of reg 7, not to proceed to take action if it has any doubt as to the appropriateness of taking action under the Regulations. The Regulations provide a method for notifying the reason for the central authority not taking action and that may thereby allow the citizen of the other convention country affected an opportunity to cure the perceived defect and make another request thereafter. That process seems to be remarkably appropriate and certainly available to the central authority.
Should it be necessary for me to do so for the purpose of determining an application for a permanent stay then I would determine that any retention by the mother of the children, whether it occurred on 29 March 2012, 30 March 2012 or 31 March 2012, could not, in the circumstances, have been wrongful. The actions of the father made it impossible for the mother to remove the children from Australia to Sweden and that is still the case today, where the passports for the children are held now by the Court (see court order dated 30 May 2012).
The evidence suggests the mother had the intention of returning with the children to Sweden on 16 April 2012. She changed the bookings for herself and the children on 29 March 2012. The action of changing the dates of return to Sweden from 30 March 2012 to 16 April 2012 is not consistent with an intention on the part of the mother to remain permanently in Australia with the children.
Further, it seems, the father was on notice that the mother’s stated reason for changing the travel date was the ill health of one of the children. However it was still not possible for the mother to have the children’s passports for a journey on 16 April 2012.
Further, on 24 April 2012, the mother’s solicitors wrote to the father’s Australian solicitors, Santone Lawyers, seeking confirmation that their client’s position remains as it was on 30 March 2012, as outlined in their letter of that date. By response, dated 29 April 2012, the father’s solicitors acknowledged their client’s knowledge that the mother had complained she was unable to leave Australia without the children’s passports. Rather than offering up the passports, the father’s solicitors, clearly on instructions, criticised the mother for not having asked for them. At the same time, the letter makes clear the father would return to Australia on short notice so the children may be released to him, to return to Sweden.
There is, in that letter, nothing to suggest to the mother that the father would release the passports to her to allow her to return the children to Sweden at a time and in a manner of her choosing. In the circumstances of this case, the father was entitled to be informed by the mother when the children would be returning to Sweden and how she proposed they be returned, once she had the ability to return them (that is the children’s passports here in her possession). It seems clear that at least by mid to late April 2012, the parties’ relationship had broken down, their ability to be able to agree about the method of return of the children to Sweden seemed very limited. Each had commenced Family Law proceedings in different countries.
The respondent submitted there could not be a retention on 30 March 2012 as claimed by the application. It is submitted that on the facts of this case, retention could not have occurred until 31 March 2012.
As seen earlier, when I set out details of authority on the issue of the possible date of retention, different approaches have been taken by Courts in different countries. One line of decided cases finds retention can occur at a date earlier than that specified in an original agreement as to how long the children might spend in a country which is not their place of habitual residence, where that agreement is repudiated by a parent at that earlier time.
Other cases have illustrated an approach where retention cannot occur until the agreed return date has expired (see Director-General, Department of Families (QLD) v BW).
I suspect it really is not possible to be definitive about when retention in all cases of alleged broken agreements occurs. I subscribe to the view that the determination will be governed by the particular facts of each case.
In this case, the father, by his actions, did not believe the mother had repudiated the agreement for the family to return to Sweden on 30 March 2012 because on his own evidence, he went to the mother’s residence on that day to collect both the mother and the children to take them to the airport. Even if he did hold the view that the mother had unequivocally repudiated the agreement to return the children to Sweden on 30 March 2012, it seems that repudiation occurred either on that day or very shortly before.
As I have said earlier, whether there actually was or was not a repudiation of the agreement by the mother, the father’s actions with the children’s passports prevented her from returning them on 30 March 2012 or thereafter without travelling with the father or delivering them to him so that he might return them.
In relation to the father’s action in consenting to the jurisdiction of the Family Court of Australia to hear a parenting application, including one of his own filed in Court on the first day of this hearing, it is submitted such action defeats the underlying purpose of the convention, namely to determine the forum for the parents to litigate about the care of their children. As such, it is submitted these proceedings should be dismissed as being redundant.
At first glance, the argument has some attraction. However, in this case, the father’s application is for interim orders only. Further, in the Australian proceedings, the father could seek a stay of those proceedings on the basis of Australia being an inappropriate forum in which to conduct the proceedings.
I would not rule out that in an appropriate case, where the Family Law Act had been accepted as an appropriate proceeding to determine parenting of children, the Court would take the view it was inappropriate to have both proceedings under the Regulations (as here) and proceedings under the Family Law Act being conducted at the same time in relation to the same children.
To the extent that it is necessary to do so, I reject the applicant’s submission that the father’s actions in retaining the passports of the children had no practical impact on the circumstances of the case, as the mother had no intention to return them to Sweden in any event. In my view, the father’s actions prevented the mother from remedying her wrong, had she intended to wrongfully retain them on 30 March 2012. It can not be the case that the mother could not be allowed to return the children to Sweden within a reasonable period of 30 March 2012 expiring. The father had threatened to cause Hague proceedings to be instituted on or about 29 or 30 March 2012 by letter from his solicitor to the mother’s solicitor. The mother would have known, thereby, that it would be costly for her to oppose the Hague proceedings in Australia. She should not be prevented from voluntarily returning the children to Sweden at any time prior to the date of the application being filed on 30 May 2012. For all the above reasons, I will accede to the respondent’s application and permanently stay this proceeding.
The order of the Court shall be:
Proceedings commenced by the Secretary of the Attorney-General’s Department against the respondent mother on 30 May 2012 under the Regulations are permanently stayed.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 30 July 2012.
Associate:
Date: 10 August 2012
Key Legal Topics
Areas of Law
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Civil Procedure
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Immigration
Legal Concepts
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Stay of Proceedings
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Abuse of Process
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Jurisdiction
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