Department of Child Safety and Herd

[2008] FamCA 989

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & HERD [2008] FamCA 989

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Removal of children from USA to Australia – Marriage agreement sanctioned in USA – Interpretation of terms of agreement – Determination removal in accordance with the agreed terms and therefore not wrongful

APPLICANT: Director-General, Department of Child Safety

RESPONDENT: Ms Herd (aka Jamison)

FILE NUMBER: BRC 7162 of 2008

DATE DELIVERED: 10 October 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 10 October 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr K A Parrott
Crown Law

COUNSEL FOR THE RESPONDENT: Mr G Page SC

SOLICITOR FOR THE RESPONDENT: MacDonnells Law

Orders

IT IS ORDERED THAT

1. The application filed 6 August 2008 be dismissed.

2. Paragraphs 1, 2, 4 and 5 of the Orders made by this Court on 7 August 2008 be discharged.

IT IS REQUESTED THAT

1. The Australian Federal Police remove the names of MS HERD (aka JAMISON) (“the mother”) born … August 1972, B born … August 1997 and J born … January 2001, from the PACE alert system at all international departure points in Australia.

IT IS DIRECTED THAT

1. The passports currently held by the Family Court in the names of THE MOTHER born … August 1972, B born … August 1997 and J born … January 2001, be returned to the Mother.

IT IS NOTED that publication of this judgment under the pseudonym Department of Child Safety & Herd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7162 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SERVICES

Applicant

And

MS HERD (aka JAMISON)

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application by the Central Authority for orders seeking the return of B born in August 1997 and J born in January 2001 to the United States of America under the Family Law (Child Abduction Convention) Regulations.

2. The children are the children of a marriage between the requesting father, Mr Herd, and the respondent mother, Ms Herd.  The children were born in Australia.  The parties married in Australia in October 1994 and in January 2005 the family moved to the United States. 

3. The parties separated on 11 November 2005, but continued to reside in the United Staets.  On 12 July 2007, the parties entered into a marriage agreement, which marriage agreement was ratified by the judgment of the Circuit Court in … on 3 August 2007.  The marriage agreement addressed issues between the parties in relation to their property, spousal support and children's matters.

4. In relation to the children's issues, the agreement dealt both broadly and specifically with the rights and obligations of the parties and included provisions for shared parental responsibility, shared custody, shared time and shared financial support.

5. In January 2008, by correspondence both from herself and solicitors acting on her behalf, the respondent gave the father notice of her intention to return with the children to Australia.  By letter dated 15 February 2008 from solicitors acting on his behalf, the father gave notice of his objection to the removal of the children from the United States.  On 28 April 2008, the mother had the children flown to Australia.  It is agreed that the children were habitually resident in the United States immediately prior to their removal from that state.  The requesting father enlisted the assistance of authorities in the United States and Australia and on 6 August 2008 this application for return of the children was filed. 

6. It is agreed that the issue for determination today is a very narrow one, that is:  was the removal of the children from the United States in April 2008 wrongful in terms of the convention, that is, was it in breach of the requesting father's rights of custody.  It is clear that the father had rights of custody to the children at the relevant time and that he was exercising those rights.  The determination of the wrongfulness of the removal in question rests on the interpretation of the terms of the marriage agreement ratified by the Circuit Court. 

7. In that agreement, in defining the rights and obligations of the parties, they did so in a way which, as part of parental responsibility, would include the shared right to determine where the children should reside.  The following clauses appear most relevant to my determination today, and I quote:

   "5.    Neither parent shall take the child(ren) from the custody of the other parent or any child care provider or other person entrusted by the other parent with the care of the child(ren) without the agreement of the other party during the other party's time of parental responsibility or visitation."

   And under a heading "Section V. Other", the following clauses appear:

   "[the father] and [the mother] agree completely that if their company ([…].com) is unable to pay [the mother] at least her weekly salary (figured at $3500 USD per month) for more than 2 weeks in a row, [the mother] retains the right to move back to Australia with [the children] with at least 3 months written notice.  This clause stays effective until [J] is 18 years of age, or [the mother] gets married, whichever occurs first.  The idea is that so long as the company is able to pay [the mother], she agrees to stay with the children in [the United States].  If it goes bust, she can take them back to Australia.

   Both parents agree that [the United States] is the home of the children and neither parent will move/relocate either child to another place without the other's consent."

8. To return, firstly, to clause 5, in my view, this clause clearly evidences an intention that, during periods when one parent has a child in his or her care, or with others during his or her periods of visitation, the other parent should not remove the child from those care arrangements without agreement of the other parent.  In my view, this clause relates only to the day-to-day arrangements for the children.  It is the meaning and effect of the "Other" clause which is most relevant to the matters in issue.

9. I accept the submission that the parental rights, including rights of custody of the parties, are primarily as defined in the ratified agreement, in that neither of the parties, nor the Court, can look outside that agreement to determine the rights and obligations of the parties unless the terms of that agreement are incomplete or unclear.  Submissions were made in relation to ancillary matters and, in my view, I should not consider those matters until I have first endeavoured to determine the meaning and effect of the agreement on the face of the agreement itself. 

10. I cannot find anything unclear about the meaning and effect of the first paragraph under the heading "Other".  I pause to add that it cannot be any part of this exercise to style one's interpretation of the obligations created by the Court judgment in ratifying that agreement, by reflecting upon how unwise the parties were in reaching such an agreement, or by considering notions of unfairness and harshness, or pondering upon some of the consequences of the agreement. 

11. I take the view that the meaning and effect of the first paragraph is clear and is highlighted by what might be described as the "editorial comments" appearing in the last two sentences, and I repeat them:

    "The idea is that so long as the company is able to pay [the mother], she agrees to stay with the children in [the United States].  If it goes bust, she can take them back to Australia."

    In my view, the clear terms of that paragraph are as follows:  the parties agree that the wife and children will continue to remain in the United States and be required to do so only whilst the wife and children can be supported by the company.  The parties have further agreed that, in the event of an inability on the part of the company to provide such support, the mother has the right to return to Australia with the children.  The parties are in agreement as to the preconditions which must prevail prior to that right arising.

12. The test to determine if the wife's right to exercise that option is clear.  That is, if her salary is not paid by the company for more than two weeks in a row, default has been established.  That event gave rise to the second precondition, which is:  that prior to any removal, the wife had to give at least three months notice in writing to the husband.  It is again agreed in these proceedings that such written notice was given.  In my view, the terms the parties agreed to are clear;  the consequences are apparent.

13. The terms of that clause prescribe that, if the company defaulted in providing support and if the wife gave notice, she was free to take the children to Australia.  To do so, would be in accordance with Court orders and not in breach of the father's rights of custody. 

14. What then needs to be considered is the meaning and effect of the further terms set out in the clause immediately after the clause above, and I will again read that clause into the record:

    "Both parents agree that [the United States] is the home of the children and neither parent will move/relocate either child to another place without the other's consent."

15. In my view, the only sensible interpretation of that paragraph is to read it subject to, and supplementary to, the earlier clause.  In the earlier clause, the wife agreed to stay in the United States provided she was being supported.  In this clause, each of the parties was observing that the United States was the home of the children and that neither parent would move or relocate the children from that home without consent.  In the context of the ongoing support referred to earlier and the mother's necessary continued residence in the United States, it was the joint wish of the parties to have the children remain in the United States. 

16. To interpret the second clause in any broader fashion would be to render the specific rights and obligations created by the earlier clause to be entirely of no effect.  The earlier clause was clearly designed to ensure that the wife continued to receive support, and to provide that the wife could return to Australia if that support was withdrawn, and those terms would be entirely negated if there was a prerequisite of consent.  It is agreed that, if the preconditions had been made out, this would result in the wife being at liberty to return to Australia.  It would be a nonsense to suggest that she could return to Australia but she could not leave the United States.

17. The only sensible reading of the two clauses together is to the effect that, as long as the wife was being supported, she was bound to remain in the United States and, as long as she remained in the United States, she was required to remain in the agreed region unless the husband otherwise agreed. 

18. I am satisfied that the terms of the agreement expressly provided that a breach of the obligation to support would entitle the mother to relocate with the children to Australia and that her removal was in accordance with the terms of a Court sanctioned marriage agreement and, on the facts of this case, not wrongful.

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

I certify that the preceding sixteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate: 

Date: