DEPARTMENT OF CHILD SAFETY & CARTER

[2006] FamCA 1465

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & CARTER [2006] FamCA 1465

APPEAL – FROM DECISION OF FAMILY COURT JUDGE – CHILD ABDUCTION – CHILD BROUGHT TO AUSTRALIA – ACQUIESCENCE – In November 2005, the mother left the United States of America with the child of the parties, without the knowledge or consent of the father – In December 2005, the father travelled to Australia with a view to saving his marriage to the mother.  However, in January 2006 following marriage counselling, the mother informed the father that cohabitation would not resume – The parties second child was born in March 2006, but it was not until May 2006 that proceedings were issued for the child’s return to the USA – The trial Judge dismissed the father’s application on the basis that the father acquiesced to the retention of the child in Australia – The trial Judge recognised that, despite the father becoming aware of his ability to apply to have the child returned to the USA in November 2005, it was unfair to suggest that the father’s inaction was to be assessed from that time.  However, the trial Judge placed significance on the fact that, from early January 2006, reconciliation was unlikely, despite finding that it could be suggested that the father, following the birth of his second child in March 2006, might thereafter have been allowed a short time before deciding what to do – The trial Judge’s findings in relation to inaction as of January 2006 were inconsistent – Further, the father had not been cross-examined about his intentions with regard to attempting to secure summary return of the child or as to any other matter related to acquiescence on his part during the period March to May 2006.  In fact, further evidence led at the appeal hearing demonstrated that the trial Judge’s conclusion about the intention of the father during the period March to May 2006 was incorrect – Given that the evidence did not point overwhelmingly towards or against acquiescence, the trial Judge’s ultimate finding that the father’s actions (or inaction) met the test of clearly and unequivocally showing acquiescence was unsustainable.

Family Law (Child Abduction Convention) Regulations 1986

Fox v Percy (2003) 214 CLR 118
Warren v Coombes (1979) 142 CLR 531

APPELLANT: DIRECTOR-GENERAL,  DEPARTMENT OF CHILD SAFETY

RESPONDENT: CARTER

FILE NUMBER: BRF 1454 of 2006

APPEAL NUMBER: NA 83 of 2006

DATE DELIVERED: 22 December 2006

PLACE DELIVERED: Brisbane

JUDGMENT OF: KAY, WARNICK AND BOLAND JJ

HEARING DATE: 6 DECEMBER 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 19 SEPTEMBER 2006

LOWER COURT MNC: [2006] FamCA 933

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Baston

SOLICITOR FOR THE APPELLANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Bourke

SOLICITOR FOR THE RESPONDENT: Bernadette Farnell

Orders

1. The appeal be allowed.

2. The order of the Honourable Justice Coleman made on 19 September 2006 be set aside.

3. Each party is to provide to the Appeals Registrar in Brisbane on or before 13 December 2006 a list of conditions that they propose should be met before a return order takes effect.

4. Until further order, the interlocutory orders that were in effect before 19 September 2006 are revived.

5. Judgment is otherwise reserved.

FAMILY COURT OF AUSTRALIA AT

Appeal Number: NA 83  of 2006
File Number: BRF 1454  of 2006

DIRECTOR-GENERAL,  DEPARTMENT OF CHILD SAFETY

Appellant

And

CARTER

Respondent

REASONS FOR JUDGMENT

1. In November 2005, the mother left the United States of America with “P”, who was then just over two years of age.  The removal of P was initiated without the knowledge or consent of P’s father.  The mother brought P to Australia where she had been born.  The father was born in the USA, as was P.

2. In March 2006, a second child of the parties was born in Australia. 

3. On 19 September 2006, Coleman J dismissed an application by the Director-General of the Department of Child Safety, acting as the Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 for the return of the child to the USA. Against this order, the Central Authority appealed.

4. In his judgment, Coleman J recorded significant concessions made by the mother’s counsel, as a result of which, unless the mother could make out a ground for resisting the return of the child to the USA, an order to that effect was mandatory.  After briefly addressing other grounds upon which the mother resisted a return, his Honour stated that the only possible ground for resistance was that of “acquiescence” by the father in the retention of the child here.  Ultimately, his Honour found this ground made out.  Whether he should have so found was the central issue in the appeal.

5. In support of the appeal, the Central Authority also sought to put before us further evidence, allegedly relevant to the question of acquiescence.  We admitted the further evidence, indicating that we would give our reasons later.  At the conclusion of the hearing on 6 December 2006, we made orders allowing the appeal, setting aside the order of Coleman J and requiring “[e]ach party…to provide …on or before 13 December 2006 a list of conditions that they propose should be met before a return order takes effect.”  Other orders made that day are not presently relevant.

6. These are our reasons for admitting the further evidence and for the orders made 6 December 2006.

7. After setting out the concessions and unchallenged findings of the trial Judge which draw the application of the Convention, we will deal with the central issue in the appeal on the evidence before and the reasons of Coleman J, before turning to the further evidence, the context of which will by then be apparent.

The concessions (and unchallenged findings) about the application of the Convention

1. As recorded by Coleman J, the concessions were:

   •the child P was habitually resident in the USA on or before 16 November 2005; and

   •the USA was, and is, a Convention country

2. Moreover, his Honour noted that it had been established:

   •that the father possesses, and possessed at the time of the child’s removal, rights of custody in relation to the child pursuant to the laws of the State of California;

   •that the removal of the child breached the father’s rights of custody; and

   •that the father was either jointly exercising rights of custody pursuant to the laws of the State of California or would have exercised such rights pursuant to the State of California had the child not been removed.

Did the father acquiesce in the retention of P in Australia?

1. As seen, the mother left the USA with the child in November 2005.  His Honour reviewed evidence relating to the father’s actions upon realising that the mother and child had gone.  In so doing, he noted the father’s evidence that it was in November 2005 that he became aware of his ability to apply to have the child returned to the USA.  However, his Honour regarded it as simplistic and quite unfair to the father and inconsistent with the evidence to suggest that “the clock was running as and from November 2005”.

2. His Honour referred to emails that had passed between the father and mother and the father and members of the mother’s family in December 2005, while the father was still in the USA.  Of this correspondence, Coleman J said:

   “34.It is clear, when read in context, that the father was willing to come to this country, do whatever he had to, stay for as long as needed, provided that he would still need to go back and forth to take care of many things in the USA for the months to come if so doing was conducive to saving his marriage to the mother.

   35.In context, it would not be fair to treat that e-mail as acquiescence per se, but it is not entirely without significance that the father would, at that time, express the willingness, it seems on a long‑term basis, to suspend or possibly sever ties with his country of origin and stay for what appeared to have been contemplated as a lengthy period in this country.”

3. The father followed the mother and P to Australia, arriving in late December 2005.  The father and mother attended counselling “intended at least by the father to advance the prospects of reconciliation and/or saving the marriage between the parties”.  However, Coleman J found that by early January 2006, the mother had resolved not to resume cohabitation with the father and communicated to him that intention.

4. Notwithstanding that knowledge in the father, in respect of the period from early January 2006 until the birth of the second child, his Honour said:

   “42.It is clear that [in early March] the second child of the marriage was born.  It is clear, without the need for any evidence expressly directed to the point, that the father's forbearance from commencing any proceedings in the period between [early January] and the period two months later, during which the mother was in the latter stages of pregnancy with the second child of the marriage, ought not in any Court which purports to act fairly be held against the father.  With great respect to him, had he done otherwise, he would be likely to have been criticised.

   43.That takes the father up to [early March] of this year.  It could also be reasonably suggested that the father might thereafter have allowed a short time before deciding what he would do.  On 5 May it is clear that the father, objectively for the first time, took steps consistent with an intention to have the child, [P], returned to the United States of America.  It is perhaps playing with words, but hopefully not impermissibly so, to suggest that, albeit for reasons which are understandable and commendable, the father was until 5 May this year, content to allow the child to remain within the jurisdiction of this country and that, objectively, only on or about 5 May this year did the father evidence an intention that the child not continue to remain in this country.”

5. Additionally to these observations, his Honour noted that, though the father had not made any application for resident status in Australia, he had renewed visas in Australia from time to time.  However, his Honour said the obtaining of visas and their renewal was not something which would properly advance the mother’s defence.

6. By the time the application was heard by Coleman J the father had been in Australia for about nine months.  Coleman J found that in that time the father had abandoned his home (which his Honour took to be a mobile home on a rented site in the USA) and no longer held any business interest in the USA.  The father had not given any evidence in relation to future intentions if the Central Authority’s application was unsuccessful. Coleman J also referred to the absence of proceedings instituted by the father in relation to either of the children in either country.

7. Of significance to his Honour’s ultimate conclusion that the father had acquiesced in the retention of the child P in Australia is the following paragraph at the conclusion of his Honour’s review of the evidence:

   “59.Those then are the matters which emerge from the evidence.  It is clear before any regard is had to the authorities that the evidence does not establish overwhelmingly either the defence sought to be made out by the mother or, conversely, that such defence is necessarily bound to fail.”

8. His Honour then turned to “Relevant Law”:

   “63.…Learned counsel for the Central Authority, in referring the Court to Lord Browne‑Wilkinson's judgment in his written outline, highlighted a number of matters to which this Court should and hopefully will have due regard.  The first of those was that, whilst acquiescence could be inferred from conduct, acquiescence could not be inferred simply from the wronged parent having concurred in a temporary arrangement with a view to arriving at an amicable solution.  The logic of that proposition is apparent and irresistible.  Certainly, in the context of this case, it covers the period until [early January 2006].

   64.There is no evidence that subsequent to that date there were any attempts to arrive at an amicable solution.  Indeed, it could fairly be said that it was not until 5 May 2006 that the father, having arrived in this country, signified overtly any desire that such solution, amicable or otherwise, would entail the child returning to the United States of America.

   …

   68.In what was submitted, almost certainly correctly, to be the critical portion of the judgment, Lord Browne‑Wilkinson, referring to the exceptional circumstances in which the defence of acquiescence might be enlivened said: 

   "These exceptional circumstances can only arise where the words or actions of the wronged party show clearly and unequivocally that the wronged party is not insisting on the summary return of the child.  They must be wholly inconsistent with the request for the summary return of the child."

   …

   70.It is not without significance that the test as propounded by Lord Browne‑Wilkinson is in the terms in which it is stated.  It might appear to be playing on words, but the Court does not perceive that it is, to suggest that there is a material difference between someone not insisting on the summary return of a child pursuant to the regulations and someone who is consenting to a child remaining in the jurisdiction indefinitely.  Such distinction would be consistent with the domestic laws of Australia.  That arises this way.   Whilst clearly what is essentially a summary proceeding, the Court undoubtedly having the power to order the return of this child to the United States of America, it is clearly not the case that the failure to do so precludes the child ever being returned to the United States of America.”

9. Having completed his discussion of the law, Coleman J said:

   “72.Turning then to the facts of the case, the Court must address the issue this way: has the mother established on the balance of probabilities that the words and actions of the father show clearly and unequivocally that he is not and was not, up to the date he filed his application insisting on the summary return of the child to the United States of America.  Or, to use the perhaps alternative expressions of Lord Browne‑Wilkinson, are those words or actions wholly inconsistent with the request for the summary return of the child?

   73.… In summary, until 3 January this year, it could not fairly be said that the test propounded by Lord Browne‑Wilkinson can be said to have been satisfied on the balance of probabilities.…

   …

   75.The question then arises what word or actions thereafter could, on the balance of probabilities, establish that the father was not insisting on the summary return of the child?  The short answer to that question is that no words or actions of the father himself between that date and 5 May militate against a finding that the father was not insisting on the summary return of [P].  The absence of action after the father learned [in early January 2006] that his hopes for reconciliation and repatriation to the United States of America were not going to occur is significant.

   76.There is no suggestion that at any time thereafter until 5 May, the father signified his intention that the family return to the United States.  There is no evidence that he took any steps, financial, domestic or otherwise to secure either the return of the family or [P] to the United States or the preservation of accommodation, income and infrastructure in that country in the event of such return.

   77.Whilst the absence of any action until the birth of the second child is a matter for the which the father should be commended, the reality is that he did not, notwithstanding the wait until that occurred, commence his application or give any indication that he would or seek to explain his delay in so doing by reference to that event.  Of greater significance, in terms of whether or not the father subjectively intended to insist on the summary return of [P] to the United States of America, are a number of other matters which emerge from evidence, as it were, independent of anything the father has said in relation to his intention.

   78.The evidence is clear that the father has, with respect to him, with apparent indifference, allowed his residence in the state of California to be at least compromised and possibly lost.  Similar observations apply to his business and source of income in that country.  Those actions are inconsistent with the father having a subjective intention to insist on the summary return of [P] to the United States of America.  The absence of any proceedings in the United States of America or perhaps, more significantly, the absence of any evidence of intention to commence proceedings in the United States of America, is also more consistent with the father's subjective intention being to not insist on the summary return of the child to the United States of America than the contrary.

   79.There is, with great respect, an air of unreality inherent in the whole of the evidence of the father about what is likely to happen if [P] is returned to the United States of America.  There is no suggestion, save to the extent it appears that the mother and father will not be cohabiting, that anything will be any different, except of course, that the evidence of the father does not enable the Court to find that the home will be there and clearly establishes that the business will not be there.  The evidence fails to identify any form of income or other means by which the mother and child and the father, for that matter, would support themselves or be supported.

   80.… But, objectively, when determining whether his subjective intent is in the terms required, this circumstantial evidence militates against concluding that he had a subjective intention to insist on the summary return of the child to the United States jurisdiction.

   81.…the totality of the evidence, both direct and circumstantial, establishes to the requisite standard that, as the wronged parent, the father is not insisting, or was not until 5 May, on the summary return of the child, and that an intention to secure such summary return of the child is wholly inconsistent with the evidence.”

10. The trial Judge further concluded that in the exercise of his residual discretion he would not order the return of the child.  In this decision, Coleman J took note of the presence of a second child, who could not be subject to the Convention, the uncertainty of the circumstances in which the child would be living if returned to the USA and the apparent incapacity of the mother to obtain lawful residence in the USA.

11. We think that the approach that his Honour took was affected by error in the following ways:

    (i)There is inconsistency between his Honour’s apparent “starting the clock running” against the father from early January 2006 (eg. paragraph 75, quoted earlier) when in paragraph 42 of his reasons (also earlier quoted) his Honour expressed the view that, given the advanced pregnancy of the mother, until the birth of the second child was a period which “…ought not in any Court which purports to act fairly be held against the father…”. 

    There is also tension between his Honour’s observations in paragraph 77 (set out before) that the father did not “…seek to explain his delay…by reference to that event…”, i.e. the birth of the second child and his Honour’s expression in paragraph 42 (also set out earlier):

    “…It is clear, without the need for any evidence expressly directed to the point, that the father’s forebearance…ought not be…held against the father…”

    Moreover, in paragraph 43 his Honour said, as previously seen:

    “That takes the father up to [early March] of this year.  It could also be reasonably suggested that the father might thereafter have allowed a short time before deciding what he would do.” (emphasis added)

    Although minds may differ on what might constitute “a short time”, if three weeks was allowed, that would not “start the clock running” against the father on the issue of acquiescence until the beginning of April 2006.  Such an approach, which seems consistent with his Honour’s observations, would only bring into focus a period of less than five weeks.

    Moreover, 5 May 2006 was the date upon which the father signed the formal application to the Central Authority and an affidavit in support.  It seems an obvious inference that the father had some contact with, or took steps with, the Central Authority for the preparation of those documents prior to 5 May.  Such an inference would further shorten the period under scrutiny, perhaps four weeks or less.

    Since, as his Honour observed, there were no overt actions of the husband to demonstrate acquiescence, that represents a very short period within which events might occur which would show “clearly and unequivocally” that the father was not insisting on the summary return of the child, although we do not suggest that the general circumstances, including matters which arose prior to the period in focus or which continued afterwards, are excluded from consideration.

    (ii)The father had not been cross-examined either about his intentions with regard to attempting to secure summary return of the child or as to any other matter related to acquiescence on his part, during the period of early March to 5 May 2006.

    In her Form 2A, the mother raised only a general plea in relation to acquiescence, saying:

    “1.  The Applicant…consented and or subsequently acquiesced in the child being removed to, or retained in Australia;”

    Nowhere in her material did she depose to any particular conduct of the father from early March 2006 upon which she relied to establish acquiescence.

    Indeed the mother’s evidence seemed to negate any possibility the father had done anything to indicate acquiescence to her, for in her affidavit she deposed that she applied for legal aid on 28 April 2006 to resolve the issue of contact because she was:

    “…concerned [the father] may try to take the children out of Australia…”

    (iii)The matters which led Coleman J to the finding of the father’s acquiescence were as earlier seen: the father’s preparedness to stay for a lengthy period in an endeavour to save the marriage; that it was not until 5 May 2006 that the father overtly displayed an intention to insist on the return of the child to the USA; and the father did not seek to explain his delay by reference to the birth of the child.

    We have already commented about some inconsistency in the regard had to some of these matters.

    However, these were not the major matters, because after he had referred to them (paragraph 77 of his reasons) Coleman J said “Of greater significance…are a number of other matters…”.

    His Honour then referred to the fact that the father, as his Honour found, had abandoned his mobile home in the USA and no longer had any business interest in the USA, the result being that it was not apparent to what living circumstances the father might return nor how he might be able to provide separately for the mother and children.

    However, as to the abandonment of the mobile home, Mr Baston, counsel for the father, asserted that nowhere in evidence had the father said that he had abandoned the home.  The cross-examination to which we were taken supports that proposition.  Though counsel for the mother put to the father that he had abandoned the home, this was not accepted by the father.  However, of greater significance on the point was the evidence of the mother that though she and the father initially lived in a mobile home:

    “A few weeks after [P]’s birth we moved into a home owned by [the father’s] grandmother…”.

    (iv)Given that, as seen, after his initial review of the evidence Coleman J found it did not point overwhelmingly either way, absent a clear indication of something that arose from his Honour’s consideration of the law or its application, his ultimate finding that the father’s actions (or inaction) met the tests of clearly and unequivocally showing acquiescence or, put otherwise, were wholly inconsistent with pursuit of a summary return, would be surprising.  We do not find apparent what persuaded his Honour to depart from the position he expressed in paragraph 59 of his reasons.

1. There was no argument before us about his Honour’s identification of applicable principles.  The challenge was to his ultimate conclusion of fact on the issue of acquiescence.

2. As to the role of appellate courts, in particular in appeals that challenge conclusions of fact, in Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ said:

   “Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.  Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses…” (pp 126/127)

3. Their Honours quoted the passage in Warren v Coombes (1979) 142 CLR 531, where their Honours Gibbs ACJ, Jacobs and Murphy JJ said:

   “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.  In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shirk from giving effect to it.” (at p 551)

4. Later, Gleeson CJ, Gummow and Kirby JJ said:

   “Such courts must conduct the appeal by way of rehearing.  If, making proper allowance for the advantages of the trial judge, they [the appellate court] conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

   …

   …[T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute…”

5. In our view, on all the evidence before him, it was not open to the trial Judge to conclude that there was clear and unequivocal evidence of acquiescence and/or that the circumstances were “wholly inconsistent” with a request for summary return of the child.

The further evidence

1. The further evidence was comprised of two affidavits, one by an officer with the Central Authority and another by a solicitor who acted for the father in preparing the father’s affidavit in support of the Central Authority’s application.  The officer deposed that on information and belief, the father first made enquiries with the Commonwealth Central Authority in relation to the return of the child to the USA on or before 9 March 2006.  He was referred to the Department to assist him with bringing an application under the Hague Convention.  The father contacted the Department on 3 April 2006.  On 5 April 2006 the “relevant application material” was forwarded by the Department to the father and there was then contact between the Department and the father on 6 and 19 April 2006 and by the Department with the legal representative of the father on 20 April 2006.  The legal representative sought assistance in the preparation of the Hague application.  Much correspondence between the solicitor and the Department followed between then and May 2006.

2. We allowed the further evidence because, in our view, it demonstrated that the conclusion of Coleman J about the subjective intention of the father during the period following the birth of the second child in early March 2006 to 5 May 2006 was incorrect, as were his Honour’s conclusions about the absence of objective evidence of action by the father to secure the summary return of the child during that period.

3. Moreover, though the father could have put the further evidence before the trial Judge, as seen the mother’s “pleading” about acquiescence was unparticularised and the father had not been cross-examined about his intention during the relevant period.

Re-exercise of discretion

1. For the aforegoing reasons, we rejected the case of the mother on acquiescence.

Conclusion

1. Accordingly, we allowed the appeal, set aside the dismissal of the Central Authority’s application, thereby reviving it and made the following orders:

   1.The appeal be allowed.

   2.The order of the Honourable Justice Coleman made on 19 September 2006 be set aside.

   3.Each party is to provide to the Appeals Registrar in Brisbane on or before 13 December 2006 a list of conditions that they propose should be met before a return order takes effect.

   4.Until further order, the interlocutory orders that were in effect before 19 September 2006 are revived.

   5.Judgment is otherwise reserved.

   6.The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  22 December 2006