Department of Community Services and Raddison - [2007] FamCA 1702

FAMILY COURT OF AUSTRALIA

DOCS & RADDISON

[2007] FamCA 1702

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Rights of custody – Rights of custody through agreement – Agreement having legal effect – Right of veto – Right to apply for injunction not a right of veto – Application made after one year of the removal of the children – Settled environment – Discretion to return

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Children’s Act 38 of 2005
Natural Fathers of Children Born Out of Wedlock Act 86 of 1997

S v H 2007 (3) SA 330 (C)
Re M (FC) and another (FC) (Children) (FC) [2007] UKHL 55

APPLICANT:

Director-General, Department of Community Services

RESPONDENT:

Ms Raddison

FILE NUMBER:

SYC

4975

2007

DATE DELIVERED:

24 December 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

5-6 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Department of Community Services

COUNSEL FOR THE RESPONDENT:

Mr Le

SOLICITOR FOR THE RESPONDENT:

Le Vaccaro Lawyers

Orders

That the application filed on 13 July 2007 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4975 of 2007

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS RADDISON

Respondent

REASONS FOR JUDGMENT

Introduction

The application before the Court was filed by the Director-General of the Department of Community Services as the representative of the Central Authority under the Family Law (Child Abduction Convention) Regulations. By that application orders are sought under the Regulation for the return to South Africa of the children K born the … March 2000 and T born … October 2003. Those children were removed from South Africa by their mother on the 27th December 2005.
Before dealing further with the decision I would like to point out what I observe is an emerging trend for cases brought under the Regulation to be complicated, difficult to decide and swamped with documentation. In this case the bundle of evidence presented to me is 652 pages long. In addition I have been provided with copies of legislation, texts and decided cases which run to hundreds of pages. I have had to spend many hours reading and researching before I could commence to write this judgement. This seems a long way from the intended summary procedure, quick and straight forward process which was envisaged by the signatories to the convention upon which the Regulations are framed.
The Court puts aside its other work in order to deal with these cases expeditiously. That expedition applies not only to the hearing of the case but also to the delivery of a judgement.
I would also like to record my concern about the manner in which the applicant obtains evidence as to the law of other countries. In this case the applicant concedes that the “Legal Advice” attached to the application was commissioned by the father of the subject children. This immediately casts doubt on the impartiality and reliability of the advice. I refer later in these reasons to the consequence of such a procedure being adopted by the applicant.

The Issues

The issues which have to be determined in this matter are as follows:-

Habitual Residence

a)Were the children habitually resident in South Africa immediately before their removal on the 27th December 2005?

Rights of Custody

b)Did the father have “rights of custody” in respect of the children immediately before their removal from South Africa on the 27th December 2005 as required by Reg 16?
·Regulation 16
·Definition of “rights of custody” in Reg 4

c)Did these rights of custody, if any, arise:

by operation of law; or

by judicial or administrative decision; or

by an agreement having legal effect under a law in force in Australia or a Convention Country?

d)The issue of whether there was an agreement having legal effect under a law in force in South Africa requires consideration of:

Meaning of the phrase “agreement having legal effect”

Whether there was an agreement, and if so what were its’ terms?

If there was an agreement, whether it had “legal effect” in South Africa as required by reg 4(3)(c)

Inadequacy of expert evidence provided on applicable law in South Africa

e)If there was an agreement, whether it amounted to “rights of custody” as required by the Regulations. This includes consideration of:

If there was an agreement, did it provide rights of access rather than rights of custody?

The requirement of a right of veto – did the father have the “right of veto” in relation to the removal of the children from South Africa immediately before they were removed?

Consent to the issue of South African passport
Whether the right to apply for an interdict preventing the removal of a child constitutes a right of veto

f)If the father did have rights of custody at the relevant time, whether he was exercising them at the time or would have exercised them if the children had not been removed or retained?

Whether the application was lodged within one year of removal

g)Was the application lodged within one year of the removal of the children from South Africa? (it is conceded by the applicant that the application was filed more than one year after removal).
h)Was the mother concealing the whereabouts of the children following their removal thereby depriving the father of the opportunity to seek the intervention for the return of the children under the Convention? In such circumstances, is the mother estopped from relying on the fact that the application was filed 12 months after the removal?

Settled in new environment

i)Have the children settled in Australia?
j)In the event of the Court finding that the children are settled in Australia should there none the less be an order for the return of the children?

Grave Risk

k)Is there a grave risk that the return of the children to South Africa would expose the children to physical or psychological harm or otherwise place them in an intolerable situation?
l)If the Court is satisfied there is a “grave risk” to the children should there be an order for return of the children notwithstanding, upon conditions stipulated by the court?

Whether conditions should be imposed on any return order

m)Should the court impose conditions in the event of a decision for the return of the children in any event?

Background Facts

The father is 45 years of age and lives in South Africa.
The mother is 44 years of age and now lives in Australia.
In about 1996 the parents met. The father says that they commenced a “relationship” in 1997. This is denied by the mother.
K was born in March 2000.
Sometime in the second half of 2002 the mother moved to a separate residence from that which was shared with the father.
In January 2003 it is alleged by the mother that she was raped by the father. This is denied by the father.
In March 2003 the mother says there was a further period of cohabitation with the father albeit against her wishes. The father denies any forcing of the situation on his part.
The mother says that in July 2003 she moved in with her parents. She said the father resided with she and the child K at that residence. Again this is denied by the father.
In October 2003 the child T was born.
The mother says that in early 2005 the father made false allegations to Police about her.
The parents ceased to share the same residence in July 2005.
The parents were never married.
The birth certificates for each child as tendered in the hearing show the father being named on each of the children’s birth certificates.
On the 7th September 2005 the mothers’ solicitor sent a “without prejudice to rights” letter to the fathers solicitor offering terms of settlement in relation to their disputes. This is said to partly constitute an agreement for the purpose of regulation 4. The letter specified the terms upon which the mother was prepared to settle were:
1.The Domestic Violence Interdict placed on the court roll for 9 September 2005 is by agreement set aside as a whole.
2.Your client will have the following rights of access to the minor daughters:
2.1.Access to the elder daughter [K]:
2.1.1.Every alternate weekend from Friday 17:00 to Sunday 17:00;
2.1.2.The minor child will spend with our client every alternate long weekend, every alternate long and short school vacations of which Christmas and Easter will be rotated, every Mother’s Day, and the minor child will spend every Father’s Day with your client;
2.1.3.Your client will have telephonic access to the minor children at all reasonable times;
2.1.4.The access as set out above will be applied so that it does not infringe upon the minor child’s scholastic, religious or social activities.
2.2.Access to [T]:
2.2.1.Your client will have access to the child every alternate Saturday or Sunday from 10:00 to 17:00.
2.2.2.As soon as she reaches the age of 3 years, your client’s rights of access will be the same as with regard to [K] set out above.
3.Maintenance in respect of the minor children:
3.1.Your client will pay a sum of R1500.00 per month per child;
3.2.Your client will be responsible for all reasonable medical expenses of the minor children, and keep the minor children registered on his medical fund;
3.3.Your client will be responsible for the minor children’s school fees and school clothes as well as half of all reasonable extramural activities.
The evidence of the father and mother suggests that some of those terms were implemented; however, there is no evidence that the terms were ever accepted by the father. The question arises therefore whether there was ever a meeting of the minds about the agreement and therefore, whether there was any agreement at all or alternatively whether there may have been a series of agreements which were made for each occasion of time when the father was permitted to spend time with the children by the mother.
On the 27^th December 2005 the mother left South Africa and travelled to Australia. She did not tell the father she was leaving.
On 23^rd January 2007 the father obtained from the High Court of South Africa an order in the following terms:-
Declaring that the control and custody of his two minor children [K] (born […] March 2000) and [T] (born on […] October 2003) be awarded to the applicant pending an investigation and recommendation by the Family Advocate.
Annexed to the Application at page 119 of “the bundle” is a document titled “Legal Argument”. I was told by the applicant, when I enquired as to the circumstances in which the document was created, that it had been commissioned by the father and provided to the applicant either directly or through the central authority in South Africa. I record here my concern that this is an inappropriate method for the applicant to obtain evidence as to the law in a foreign country. This advice should be commissioned directly by the central authority in the country to which the children are sought to be returned. The risk of bias, partiality and inaccuracy must be seen as high if the central authority adopts the course of action embraced in this case. Further, the legal advice must be one which this Court can accept is reliable and accurate. In this case the applicant concedes that in some respects the advice should not be seen as accurate or reliable.

Credit

In proceedings which are to be conducted without the benefit of testing parties’ evidence it is almost impossible to determine matters of credit or to prefer one party’s version of a particular fact to that of the other unless there is some corroborating evidence. In these reasons, where I am able to prefer one of the parent’s version of particular facts I will refer to that.

Determination of the Issues

Habitual Residence

a)Were the children habitually resident in South Africa immediately before their removal on the 27th December 2005?

This issue is determined by whether the father had rights of custody in relation to the children. If the father did not have rights of custody then it was solely for the mother to determine where the children would be habitually residing. The mother’s argument is that in such circumstances she changes her habitual residence by intention coupled with action. In this case when the mother left South Africa she intended to reside in Australia permanently.
If the father did have rights of custody in relation to the children then the mother could not unilaterally change the habitual residence of the children.

Rights of Custody

a)Did the father have “rights of custody” in respect of the children immediately before their removal from South Africa on the 27th December 2005 as required by Reg 16?

Removal must be wrongful under Reg 16

Of central importance to the determination of this application is whether the father held rights of custody immediately before the children were removed to Australia. In order for the duty to return children pursuant to the Convention to arise, the applicant must establish that removal of the children to Australia was ‘wrongful’ within the meaning of Reg 16.
Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 provides that a return order must be made if an application for return of a child has been made and the removal or retention was wrongful, subject to certain discretionary matters.
In the recent decision of the House of Lords in Re D (a Child) (abduction: rights of custody) [2007] 1 All ER 783, Baroness Hale of Richmond said par 24:
The world would be a simpler place if the convention had provided that all removal or retention of a child outside the country where he or she is habitually resident without the consent of the other parent or the authority of a court is wrongful. But it does not. The convention recognises that not all parents have the right to demand the automatic return of children who have been taken away without their consent.
The Convention, and Australia’s adoption of its articles in the Family Law (Child Abduction Convention) Regulations1986, achieves this in the following ways:
Firstly, regulation 16(1A) provides that a removal or retention is wrongful if:
(a)   the child was under 16; and
(b)    the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c)    the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(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.
As a consequence of amendments made in 2006, the concept of a "wrongful" removal or retention of a child in regulation 16(1)(c) is further explained in sub-regulation 2(2), which provides: “the removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention.” Article 3 of the Convention states:
The removal or the retention of a child is to be considered wrongful where-
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Secondly, Reg 16(3) provides that a court may refuse to make an order for return if a person opposing return establishes that:
(a) the person, institution or other body seeking the child's return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained…

The definition of “rights of custody” in Reg 4

The term “rights of custody” is defined in Article 5(a) which is adopted in Regulation 4 of the Family Law (Child Abduction Convention) Regulations 1986. Regulation 4 states:
(1)   For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)    the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)    rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)   For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)   For the purposes of this regulation, rights of custody may arise:
(a)    by operation of law; or
(b)    by reason of a judicial or administrative decision; or
(c)    by reason of an agreement having legal effect under a law in force in Australia or a convention country.
In Australia, the Full Court has made it clear that the notion of ‘rights of custody’ is to be interpreted broadly and determined with reference to the statutory definition in regulation 4 and not domestic law: see McCall and McCall; State Central Authority (Applicant); Attorney-General (Cth) (Intervener) (1995) FLC 92-551; see also Re B (a Minor) [1994] 2 Fam LR (Eng) 249 at p 257; Re F [1995] 2 Fam LR (Eng) 31 at p 41 per Millett LJ; Re H [2000] 1 Fam LR (Eng) 374 at p 378.
In interpreting Regulation 4, it is pertinent to note the comments of Millett LJ in the English case of Re F [1995] 2 Fam LR (Eng) 31 at p 41:
The Convention is an International Convention and it is to be hoped that its terms will receive a similar interpretation in all the Contracting States. It is to be construed broadly and in accordance with its purpose without attributing to any of its terms a specialist meaning which it may have under domestic law.
Providing an insight into how the phrase “rights of custody” is to be interpreted in light of the overall purpose of the convention are the words of Waite LJ of the Court of Appeal in Re B (A Minor)(Abduction) (1994) 2 FLR 249 at 260, which was cited with approval by Kay J in Department of Health and Community Services, State Cental Authority and Casse (1995) 19 Fam LR 474 at 482:
The purposes of the Hague Convention were, in part at least, humanitarian. The objective is to spare children already suffering the effects of breakdown in their parents’ relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression “rights of custody” when used in the Convention therefore needs to be construed in the sense that will best accord with that objective. In most cases, that will involve giving the terms the widest sense possible.

The source, if any, of the father’s rights of custody

I now turn to whether the father had rights of custody under the law of South Africa.
In determining rights of custody in Hague Convention matters, the Court must have regard to the law at the relevant time in the Convention country from which the child was removed: see Department of Community Services v Crowe (1996) 135 FLR 443; 21 Fam LR 159; FLC 92 – 217; McCall and McCall and State Central Authority (1994) 18 Fam LR 307; (1995) FLC 92-551. In the present case the children were removed from South Africa, and it is the rights that the father had under South African laws in regards to his children as at 27^th December 2005 that I must first consider.
Regulation 4(3) provides that rights of custody “may arise” by operation of law, judicial or administrative decision or agreement “having effect under a law in force in Australia or a Convention country”. In Re O [1997] 2 Fam LR (Eng) 702 at pp 708-9, Cazalet J said the expression “may arise” in Art 3 of the Convention (the equivalent of reg 4(3)) indicates that rights of custody can arise in other circumstances as well.
I now turn to consider whether the father acquired rights of custody:
a)by operation of the law in South Africa;
b)through judicial or administrative decision; or
c)through agreement having legal effect in South Africa.

(a) Whether the father held rights of custody arising by operation of the law

A useful and authoritative consideration of rights of custody under South African law is provided in the recent decision of the High Court of South Africa (Cape of Good Hope Provincial Division) in S v H 2007 (3) SA 330 (C) per Griesel J (22 December 2006). In S v H (supra) a child had been removed from South Africa by the mother and taken to Switzerland. The father brought an application in the High Court of South Africa for declaratory orders as a precursor to bringing an application in Switzerland under the Convention for return of his son. Firstly, the father wanted a declaration that he did in fact enjoy rights of custody under South African law and that these rights constituted rights as contemplated by the Convention. Secondly, and less relevant to this case, he argued in the alternative that the Court held rights of custody as an “institution or any other body” in Art 3(a), as it was seized with proceedings regarding residence, custody and guardianship that had not been determined to finality. The father was successful on this second point.
However, of relevance to these present proceedings is the fact that the father was unsuccessful in establishing that he, as an unmarried father, had rights of custody under South African common law. On this issue, Griesel J said at par 33:
With regard to the father’s claim to rights of custody, he is faced by the dilemma that, at common law, rights of custody and guardianship in respect of an extra-marital child, in the absence of any court order to the contrary, vest exclusively in the mother. (Footnote omitted)
Clearly the same dilemma faces the father in the present case, as the children who are the subject of this application were born out of wedlock.
The South African lawyers who drafted the opinion in the present case mentioned recent legislative developments in relation to non-married fathers. These were qualified by the applicant in the summary of argument as being subject to the comments of Griesel J in S v H 2007 (3) SA 330 (C). I have read S v H 2007 (3) SA 330 (c) and am of the opinion that these legislative developments do not impact on the present case. I turn now to these legislative developments and submissions of the parties.
Legislation in force at the time of removal included the Natural Fathers of Children Born out of Wedlock Act 86 of 1997. This Act enables an unmarried father to acquire rights of guardianship or custody after a South African court has determined the matter. Griesel J acknowledged that the position of unmarried father’s having no rights at common law was “ameliorated somewhat” by this Act. However, in the present case the applicant contends that litigation “was being contemplated by the father at the time the children were removed from South Africa, but no action had yet been instituted” (par 2.6.4 of the applicant’s case outline). As no court order had been either sought or made in relation to rights of custody or guardianship of the children, the provisions of this Act do not assist the father in establishing rights of custody.
The Applicant submits that the Children’s Act 38 of 2005 (“the Children’s Act”) which came into force in South Africa on 1 July 2007 affords the father with rights of custody retrospectively. In support of this contention the applicant relies upon s 21(4) of the Children’s Act. In deed Griesel J pointed out in S v H 2007 (3) SA 330 (C) at par 37, it is “clear that an unmarried father will occupy a more advantageous position once the new Act comes into operation”.
Section 21 of the Children’s Act, relied upon by the Applicant, is headed “Parental responsibilities and rights of unmarried fathers”. This section provides:
21. (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-
(a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
(b) if he, regardless of whether he has lived or is living with the mother-
(i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child
(3)
(a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (l)(a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.
(4) This section applies regardless of whether the child was born before or after the commencement of this Act
It is accepted by the parties that the Mother left South Africa with the children on the 27 December 2005, a time before the Act was even assented to let alone in force.
The Applicant submits that s20(1)(4), which extends the operation of the Children’s Act to ex-nuptial children born before as well as after the commencement of the Act, operates retrospectively. In effect, the argument of the Applicant is that if the Children’s Act applies to children born before the commencement of the Act then children who were retained or removed in late 2005 are within its ambit and thus their father had rights of custody at the time of their removal. The argument, if it has any merit, must also mean that children removed prior to the enactment of the Act in 2005 would also be effected because their fathers would be deemed to have rights in relation to those children.
In relation to the position put by the Applicant my conclusion is that the Children’s Act does not apply to the children removed in this case on the 27^th December 2005 and therefore the common law position in relation to unmarried fathers applies. My reasons are as follows:
Firstly, the Family Law (Child Abduction Convention) Regulations 1986 are clear that the relevant law is that is force immediately before removal or retention. Regulation 4 in defining rights of custody provides that:
(1)   For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)    the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)    rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)   For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)   For the purposes of this regulation, rights of custody may arise:
(a)    by operation of law; or
(b)    by reason of a judicial or administrative decision; or
(c)    by reason of an agreement having legal effect under a law in force in Australia or a convention country.
[Underlining mine]
Considering Regulation 4 it is clear that the Court must consider whether any rights of custody arose by operation of the law, reason of judicial or administrative decision or by agreement having legal effect in South Africa that was operating immediately prior to removal: see also Department of Community Services v Crowe (1996) 135 FLR 443; 21 Fam LR 159; FLC 92 – 217; McCall and McCall and State Central Authority (1994) 18 Fam LR 307; (1995) FLC 92-551.
Secondly, I am of the view that the text of s 21(4) of the Children’s Act does not prescribe retrospective operation. Section 21(4) provides that “this section applies regardless of whether the child was born before or after the commencement of this Act”. It is a well known principle of statutory interpretation that there is a presumption against retrospectivity. This section proscribes a category of children to which the Act will apply; it does not specify that the Act has effect from a time earlier than that in which it came into operation.
I find that this section does not intend retrospective operation. As a result, this Act also has no relevance to the present case. The Mother left South Africa with the children on the 27^th December 2005, a time before the Act was even assented to, let alone in force. Clearly the common law position with regards to unmarried fathers applies and the father holds no rights of custody at common law.

(b) Whether there were rights of custody through judicial or administrative decision

I note that the applicant contends that litigation “was being contemplated by the father at the time the children were removed from South Africa, but no action had yet been instituted” (par 2.6.4 of the applicant’s case outline). Thus as far as I am aware, the father has not acquired any rights in relation to his children via judicial or administrative decision.

(c) Whether there were rights of custody through agreement having legal effect

The issue of whether the father acquired rights of custody through agreement is crucial to his application, particularly given my finding that no rights arise at law or though judicial or administrative decision.
There are three issues sub issues that I must determine:
a)Whether there was an agreement and what were its terms
b)If there was an agreement, whether it had ‘legal effect’ in South Africa as required by Reg 4(3)(c)
c)If there was an agreement, whether it amounted to ‘rights of custody’ as required by the Regulations. This includes consideration of:
i)Whether any agreement provided rights of access rather than rights of custody
ii)Whether the father had a right of veto in relation to removal of the children from South Africa

Whether there was an agreement, and if so what were its terms

The Applicant contends that the mother and father entered into a partly oral and partly written agreement in relation to the children. The Applicant submits that this consisted of a written offer from the mother contained in a letter dated 7 September 2005 setting out the father’s rights of access and child support obligations, and acceptance of this offer through conduct of both parties. The father also contends that this agreement included a tacit and/or implied term that the mother would not remove the children from South Africa without his consent and that “the agreement is meaningless without such a term” (par 44.1 of affidavit sworn 31 October 2007). The mother acknowledges in her affidavit that she gave an “expression of willingness for him to have limited access to the children”. However, her position is that she never agreed to provide him with any right of veto in relation to removing the children from South Africa or determining their place of residence.
In relation to how the agreement arose, the father says at par 4.3 of his affidavit sworn 28 May 2007:
Initially I exercised my access rights by taking both children with me every Wednesday afternoon and every alternative weekend. Due to the Respondent’s violence and threats of violence I obtained a family violence interdict against the Respondent…. After obtaining the interdict… she insisted that my access rights be curtailed and during September 2005 we agreed to the access rights set out in Annexure “B” hereto.
The mother in her affidavit sworn 18 October 2007 denies paragraph 3.4 quoted above. The mother contends that the father’s violence interdict as far as she can recall “were found to have no substance and were thrown out of court” (par 45). Further, the mother says at par 45 of her affidavit: “I refute [the father]’s inference that he had access rights prior to my expression of willingness for him to have limited access to the children as detailed in annexure ‘B’ on page 47 of his affidavit.” The Applicant submits that this is in fact an admission that the agreement was entered into as set out in annexure B.
Annexure “B” of the father’s affidavit is a translation of a without prejudice letter dated 25 April 2006 from Shapiro & Shapiro, solicitors for the father, to Botha & Human Attorneys, solicitor for the mother from Afrikaans into English. The letter is headed “[The father]/ [The mother] (Domestic Violence)” and proposes terms of settlement including setting aside the Domestic Violence Interdict and specifies maintenance and accea rights in relation to both children. The letter sets out the father’s proposal that he spend alternative weekends and half the school holidays with K, the eldest child, and maintain reasonable telephone contact. With regards to T, the youngest child, the proposal was alternative weekends, and when she reaches 3 years the “rights of access will be the same as with regard to [K]”. The maintenance proposal was for the father pay R1500 per month per child; the father was to be responsible for reasonable medical expenses and keep the children registered on his medical fund. The father was to be responsible for school fees and clothes and half of all reasonable extramural activities.
The Applicant contends that this letter is no longer without prejudice. The Applicant says that as far as he is aware there was no written response to the letter. However, he contends that acceptance of the agreement is evidenced by the mother in her affidavit where she asserts there was “limited rights of access” as agreed in Annexure B. The Applicant contends these assertions in the mother’s affidavits are admissions that there was an agreement regarding access to the children. Further, the Applicant also contends that this agreement was accepted by conduct as access was facilitated by the mother. The Applicant submits that the fact that the father was not exercising these access rights fully does not invalidate the agreement. It is asserted there was partial exercise of the rights. The Applicant also relies on the reports of Ms A and Professor S that contact was being facilitated.
The mother explains the letter at Annexure B in par 42 of her affidavit sworn 18 October 2007:
… That document reflected my interest to settle disputes with [the father] concerning his application annexed to his form 2 application and marked as ‘A1’ and ‘A2’ at pages 43 and 46 respectively with the proposed terms for [the father] to have limited access to my children on a without prejudice to my rights basis… [The father] never exercised access to [K] on Wednesdays. He never telephoned the children. He failed to pick up [T] on 3 occasions and failed to forewarn me about his inability to pick them up. [The father] did not fully use the opportunities I allowed him under that document.
The mother then says at par 43 “I absolutely refute [the father]’s allegation that my concessions for him to have access to my children is in any way equivalent to rights of custody”.
In paragraph 5.1 of the affidavit by the father (see page 27 of the bundle) he says “I also fulfilled my parental obligations by paying maintenance for the children.” No details are supplied as to what this meant. To the extent that he was asserting that he made payments pursuant to the agreement which the applicant submits was operative between them, that is denied by the mother in her affidavit filed the 22^nd October 2007 where at page 169 of the bundle at paragraph 47 she says in reference to paragraph 5.1: “He did not pay any child support or maintenance as claimed. About November 2005 I initiated a maintenance proceeding against him in the Maintenance Division of the Lower Court. During the initial appearance in that matter, he told the Court that he refused to pay any maintenance.”
The father answered the mother’s affidavit by a reply filed 30^th October 2007 as part of an affidavit by Ms P. He again asserted that he had “maintained our children at all times”. He said he had voluminous evidence of this. None was provided. He then referred to being the breadwinner and supporting the family during the time the parties lived together. It is in context unclear whether he is saying he has supported the children financially by the provision of maintenance to the mother in the form of cash after the separation of the parties. He acknowledges in paragraph 49.2 of his affidavit that the mother did initiate maintenance proceedings. He says the proceedings “were due to continue in January 2007. Due to the fact that the Respondent fled to Australia, such proceedings were dismissed when I attended to Court in January 2007.”
The mother does not assert that the maintenance proceedings were to enforce the agreement said to exist by the applicant as created by the letter of 7^th September 2005. The inference which must arise out of the mother and father’s affidavits on this point is that there was no agreement which the mother could rely upon at law to enforce a promise to pay maintenance at the rate of $1500R per month per child as proposed in the letter of 7^th September 2005. Had there been any portion of the maintenance proceedings initiated by the mother which relied upon an alleged agreement arising from the letter of the 7^th September 2005 I must conclude the applicant would have been relying on that fact as the main support for the argument that there was an agreement with legal effect. In the absence of any adequate explanation, including reference to a specific statute or law, if an agreement has no legal effect in respect of one alleged provision of the agreement (child support) it is hard to imagine how it could have legal effect in relation to another alleged provision (child access).
It seems to me most improbable, in the absence of specific evidence to the contrary, that the parties ever intended an agreement to have arisen because of the offer to settle made by the mother to the father’s solicitors on the 7^th September 2005. It seems to me more likely that the mother’s solicitors anticipated a reply to the offer of settlement. If no reply was received they were, in my view, entitled to conclude that the offer was not accepted.
What then was the status of the time the children spent with their father after the 7^th September 2005? It seems to me that the most probable answer is that there was an informal arrangement between the parties which appeared to have as some of its character that the mother had an expectation that the father may seek to spend time with the children on certain days and for certain times. If the father attended on those occasions the mother would probably permit him to spend time with the children.

I am to interpret any agreement broadly.
I conclude there was no agreement of the nature envisaged by Regulation 4 (3)(c).
Should I be wrong in that conclusion I consider hereafter whether the agreement had “legal effect”.

If there was an agreement, whether it had legal effect under the law of South Africa

Regulation 4(3)(c) requires the agreement, if established, to have legal effect under the law of South Africa.

The meaning of the phrase “agreement having legal effect”

A preliminary issue before I can deal with whether the agreement had “legal effect” in South Africa is the meaning that this phrase was intended to attract in the Regulations. Regulation 4 provides that rights of custody may arise “by reason of an agreement having legal effect under a law in force in Australia or a convention country”. This requirement stems from Article 3 of the Convention, which provides:
The removal or the retention of a child is to be considered wrongful where-
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in subparagraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
[Underlining mine]
The Hague Convention was accompanied by an Explanatory Report prepared by Elisa Perez-Vera, (see Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. Ill, 1980, p. 426). This Report discusses “Article 3- The unlawful nature of removal or retention” at par 64 to 74. As noted above, Article 3 is adopted with similar expression in Reg 4. The applicant contends that this report provides support to the view that the phrase “legal effect’ was meant to be interpreted broadly and includes the purported agreement between the parties.
In the Explanatory Report, Professor Perez-Vera discusses the three ways specified in Art 3 by which rights of custody may arise. Of relevance to the present discussion is the third ground, rights of custody arising by virtue of an agreement having legal effect. This is discussed at paragraph 70 of the Report:
Lastly, custody rights may arise according to article 3. 'by reason of an agreement having legal effect under the law of that State'. In principle, the agreements in question may be simple private transactions between the parties concerning the custody of their children. The condition that they have 'legal effect' according to the law of the State of habitual residence was inserted during the Fourteenth Session in place of a requirement that it have the 'force of law', as stated in the Preliminary Draft. The change was made in response to a desire that the conditions imposed upon the acceptance of agreements governing matters of custody which the Convention seeks to protect should be made as clear and as flexible as possible. As regards the definition of an agreement which has 'legal effect' in terms of a particular law, it seems that there must be included within it any sort of agreement which is not prohibited by such a law and which may provide a basis for presenting a legal claim to the competent authorities. Now, to go back to the wide interpretation given by article 3 to the notion of 'the law of the State of the child's habitual residence', the law concerned can equally as well be the internal law of that State as the law which is indicated as applicable by its conflict rules. It is for the authorities of the State concerned to choose between the two alternatives, although the spirit of the Convention appears to point to the choice of the one which, in each particular case, would recognize that custody had actually been exercised. On the other hand, the Convention does not state, in substance or form, the conditions which these agreements must fulfil, since these will change according to the terms of the law concerned.
[Underlining mine]
It is well established that the term “rights of custody” should be construed widely in order for it to best accord with the objective of the Convention: see Waite LJ in Re B (a minor) (abduction) [1994] 2 FLR 249 at 260; Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321 at par 102.
Clearly, the report of Professor Perez-Vera supports this interpretation. It seems the intention according to the Perez-Vera report at paragraph 70 is that an agreement having “legal effect” is to include any agreement:
·“not prohibited by law”; and
·“which may provide a basis for presenting a legal claim to the competent authorities”
In the present case, the evidence (or lack thereof) gives rise to a conclusion that the agreement is neither prohibited by law nor protected by the law. However, its existence will not in itself provide a basis for presenting a legal claim to the competent authorities. The basis for unmarried fathers in South Africa on the 27^th December 2005 to present a legal claim for access or custody to their children is an application made pursuant to the Natural Fathers of Children Born out of Wedlock Act of 1997 to determine parenting orders according to the best interests of the child. Whether there is an agreement in place or not is not the issue considered by the courts of South Africa. The actual contact arrangements in place between the child and any parent or any other significant persons in the child’s life will be looked at as one of the many factors considered in determining what is in the best interests of the child.
I was unable to find any decisions of the Full Court of this court interpreting the phrase in Reg 4(3)(c) of an agreement having “legal effect”. However, it is well established that the Hague Convention is an international treaty and decisions of other signatory countries may provide guidance in interpretation: C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All E.R. 465 (Eng. C.A.).
The New Zealand Court of Appeal in Dellabarca v Christie [1999] 2 NZLR 548 provides some guidance by way of obiter. In this case the Court considered whether an informal agreement had “legal effect” under the law of the child’s place of habitual residence (i.e. New Zealand). This decision has been rejected by appellate courts in both the UK and Australia in relation to its liberal interpretation of “rights of custody” as not requiring the right of veto. However, the Court made some obiter comments in relation to interpretation of the phrase “legal effect” which, as far as I am aware, have not been discounted internationally and are worth noting. The Court discussed the use of the phrase under the heading “An agreement having legal effect''?” from page 556:
Robertson J held at p 401 that ``All the indications are that it [the alleged agreement] was intended as an informal, reviewable arrangement and was not intended to affect Ms Christie's guardianship rights.'' (There was no challenge in the High Court, nor accordingly in this Court, to the Family Court's conclusions that the father was not a guardian of Antony.) The Judge ruled at pp 401 – 402 that ``an informal agreement reached in the context of private counselling cannot be elevated to the status of an agreement `having legal effect' by virtue of s 18 of the Guardianship Act.''
Section 18 is as follows:
18. Effect of custody agreements — An agreement between the father and mother of a child with respect to the custody or upbringing of or access to the child shall be valid, whether or not either of the parties is a minor, but shall not be enforced if the Court is of opinion that it is not for the welfare of the child to give effect to it.
That provision can be traced back, although in a different form, to s 13 of the Law Amendment Act 1882. A principal reason for the original provision was to nullify the rule of the common law that an agreement by a father to part with custody was void as being contrary to public policy; see e.g. Re Besant (1879) 11 Ch D 508. Such agreements were now valid, but the Court retained its power to make decisions in the interests of children (as it did in removing the daughter of Annie Besant and the Rev Frank Besant from the custody of the former, notwithstanding that the parties had agreed that she should have custody). The Judge discussed possible differences between ``valid'' in s 18 and ``legal effect'' in the convention and concluded that the interpretation of the latter phrase that best accords with the international child abduction statutory scheme is ``an agreement which is legally enforceable''. The qualification to s 18 meant that any agreement in this case did not have that characteristic.
We are inclined to doubt whether that ruling gives sufficient significance to the remedial purpose of s 18 and its predecessors, or to the inclusion in the convention of the reference to agreements having legal effect. In addition is of course the essential difference in principle between the validity or legal effect of an agreement, on the one hand, and the methods of enforcement of it, on the other.
We do not however pursue those matters since, largely for the reasons indicated by Robertson J, we conclude that the ``decision reached'' in the 1995 document does not amount to an agreement at all:
·it is not in the form of an agreement;
·it is not signed by the mother and father;
·it is, to quote the Judge, ``expressed somewhat awkwardly and ambiguously'';
·it is imprecise in its terms, for while it records the father's request in relatively precise terms the ``decision reached'' is for access on a ``regular basis plus one week in January 1996''; and
·moreover it was to be reviewed six monthly, the first review arising at about the time of the Family Court hearing.
The context in which the document was prepared also supports the conclusion that it does not incorporate an agreement with legal effect…
The applicant sought to rely in their submission on the earlier decision of Neal J in Dellabarca v Christie [1996] NZFLR 829, a decision of the District Court of Tauranga which this appeal stemmed from. The applicant used the case in relation to the court’s use of Blacks Legal Dictionary 5^th edition to assist in defining the terms “valid”, “legal” and “effect” in relation to whether the left behind parent had obtained rights of custody through agreement having legal effect.
Regardless of whether the agreement had “legal effect”, the applicant is also required to establish that the bundle of rights afforded by these arrangements included the right of veto. In Hunter v Murrow [2005] EWCA Civ 976, the Court of Appeal per Thorpe, Dyson and Lloyd LJ found that the real issue on the facts was whether the informal oral arrangement as to contact included a right of veto, and thus the issue of whether the agreement was legally enforceable in the country of habitual residence was not necessary to consider. I consider the “right of veto” later in these reasons.

Submissions of the Applicant

The Applicant deals with the legal effect of the agreement at pg 36 – 39 of their Outline of case and Summary of Argument (see 2.10). They also summarise the opinion of the South African lawyers on this issue at pg 12. As noted below, I find the opinion of the South African lawyers to be of limited assistance on the issue of whether the agreement had legal effect. Similarly, the Applicant was selective in what parts of the South African lawyers’ opinion they relied upon. The Applicant did not provide me with any authorities on the legal effect of agreements entered into by parents concerning ex-nuptial children in South Africa in December of 2005. It is common ground that there was no court order.
The Applicant concedes that the alleged agreement is silent as to the father’s rights to determine the children’s place of residence and that this element is needed to establish rights of custody under the Regulations. Their argument is that the agreement included a tacit and/or implied term that the mother would not remove the children from South Africa without his consent and that the agreement is meaningless without such a term.
In support of the submission that there was an implied right of veto, the Applicant relies upon the South African decision of W v F 1998 (9) BCLR 1199 (N). This decision is authority for the proposition that unmarried fathers may apply to the courts for an interdict restraining the removal of children pending the finalisation of court proceedings determining to whom custody is to be awarded. I discuss this case and the Applicant’s submissions below in relation to the right of veto.

Opinion of the South African lawyers

The South African lawyers in their opinion do not provide any credible legal basis in support of the assertion that there was an agreement having legal effect that conferred rights of custody on the father. They merely make assertions that there was an agreement having legal effect in South Africa. The South African lawyers deal with the legal effect of the agreement at par 26.1 and 32 of their opinion, which was filed together with the Form 2 Application.
The South African lawyers state at par 26.1 of their opinion:
Applicant [the father] and [the mother] had reached a formal and binding agreement in respect of rights of access to, care and maintenance of the children. Both parties were legally represented at the time and this agreement had legal effect under the law of South Africa. Applicant had the right to care for the children at the time of their abduction and the right to determine their place of residence and refuse their removal from South Africa.
The South African lawyers continue at par 32:
…The Applicant, in terms of the agreement between the parties, was entitled to care for the children and in fact cared for the children, and to object to the children’s removal from South Africa. He enjoyed visitation with the children and provided for their maintenance needs. [The mother] accepted this and in fact, with legal assistance concluded an agreement with Applicant. This agreement had legal effect in South Africa.”
The only source of authority the South African lawyers provided in support of their argument that the agreement had legal effect was a passage from the explanatory Report of Elisa Perez Vera at page 70 which discusses the definition of an agreement which has “legal effect” in terms of a particular law and suggests it includes “any sort of agreement which is not prohibited by such a law and which may provide a basis for presenting a legal claim to the competent authorities…”. The lawyers make no reference to the legal effect of agreements in South Africa between parents of an ex-nuptial child in relation to rights of custody. This is the ultimate question required by the Regulations and I found their opinion to be of limited assistance.

Credibility of the legal opinion of the South African Lawyers

I find that the legal opinion of the South African lawyers to be unhelpful. A glaring omission, noted by the Applicant at par 2.6.1 (page 14) of the written submission, is that:
Nowhere in the opinion by the South African lawyers is there any reference to the case of S v H 2007 (3) SA 330 CPD. Judgment in that case was delivered by Griesel J in December 2006, and dealt with issues very much on point…
In support of the assertion of rights of custody the South African lawyers sought to rely upon the South African Constitution, the Natural Fathers of Children Born Out of Wedlock Act 86 of 1997 and the Children’s Act. The decision of Griesel J in S v H 2007 (3) SA 330 (C) made it clear that these arguments would not assist an unmarried father in the present case as no rights had been granted by the courts and the Children’s Act was not yet in force.
Further, both legal and factual inaccuracies contained in the South African lawyers’ opinion are conceded by the Applicant. The Applicant says at 2.6 of the outline of case:
…notwithstanding the firm view of the South African lawyers who drafted the opinion that the father had the requisite rights of custody for the purposes of the Convention, an analysis of South African law suggests the matter is not so clear cut.
The Applicant then continues on to refute many of the legal and even factual claims of the South African lawyers (see par 2.6 to 2.9 particularly). In the Applicant’s submissions at page 34 under the heading “Rights of Custody” the following criticisms of the South African lawyers opinion is made:
2.2 It is recognised that much of the material in the opinion is of assistance, but it appears as if the issue of the father’s rights of custody is not as clear-cut as suggested by the South African lawyers;
…
2.6 … it appears that even in South Africa the “expansive interpretation” mooted by the South African lawyers in their opinion does not coincide with the approach of the courts of that country – see the Judgment of Griesel J in S v H (supra);
2.7 The contention by the South African lawyers in their opinion that the father was the “primary caretaker” of the children, and their contention that the mother “acknowledged” and “understood” (paras 26.3, 26.4 and 32) that the father had the right to determine where the children would reside does not appear to accord with direct evidence, and is in any event a factual matter to be determined by this Court;
2.8 The contention by the South African lawyers in their opinion that the Constitution of the Republic of South Africa provides for a finding that the father had rights of custody for the purposes of the Convention is also not persuasive – and it is suggested that if they were correct in this respect, such finding would have been made by Griesel J in S v H (supra);
2.9 The references by the South African lawyers to the Natural Fathers Born out of Wedlock Act and to the new South African Children’s Act 38 of 2005 are unhelpful – Griesel J in S v H (supra) expressly rejected the argument that is put forward in the opinion of the South African lawyers.”
Clearly the opinion of the South African lawyers cannot be relied upon as a credible source on whether the father had rights of custody under South African law.

Submissions of the Mother

Counsel for the mother argued that the Applicant has failed to discharge its onus and provide evidence of the effect of the alleged agreement under the law of South Africa.

Counsel for the mother submitted that it is unlikely that an agreement between parents of an ex-nuptial child would have legal effect under South African law prior to the enactment of the Children’s Act. In support of this assertion he pointed to s22 of the Children’s Act which is headed “Parental responsibility and rights agreements” and provides that:
22. (1) Subject to subsection (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with-
(a) the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or
(b) any other person having an interest in the care, well-being and development of the child
(2) The mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person contemplated in subsection (1) those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.
(3) A parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars.
(4) Subject to subsection (6), a parental responsibilities and rights agreement takes effect only if
(a) registered with the family advocate; or
(b) made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement.
(5) Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.”
Clearly the new Children’s Act requires agreements to be registered in order for the agreements to have legal effect. This Act was not in force at the time of removal or retention of the children in this case.

There was no satisfactory evidence of the law relating to the status of an agreement entered into between parents of ex-nuptial children in South Africa at the time the children were removed from South Africa by their mother.

Conclusion – did the agreement have legal effect in South Africa?

A useful summary of legal position of unmarried father’s at the relevant time is provided in the authoritative South African family law textbook Boberg, P.Q.R. (1999) Boberg's Law of Persons and the Family, 2nd ed, Juta, Cape Town at 409, referring to the decision of the Appellate Division in B v S 1995 (3) SA 571 (A) per Howie JA (footnotes omitted):
… natural fathers have no inherent right of access to their extra-marital children in terms of the common law. All they do have is locus standi to approach the court for an order granting them access, which order the court will make if this is in the best interests of the child concerned.
This position is consistent with the recent pronouncement by the High Court of South Africa on the rights of unmarried father’s in S v H 2007 (supra) per Griesel J.
If I assume the father had entered into an agreement with the mother regarding access the question arrises whether this had legal effect under South African law. From my reading of South African textbooks and case law it appears that if the father wished to enforce this agreement he would have to apply to the courts for parenting orders. However, the courts do not look to whether the agreement was legally binding; the test they must apply when making orders is the best interests of the child. Therefore an unmarried father entering into an agreement under South African law would not be able to enforce the terms as entered into without an inquiry into whether it was in the best interests of the child and then an order made providing for access by the father to the children. Thus any such agreement would not have legal effect.
There is much discussion in commentary on South African family law prior to the enactment of the Children’s Act of the need to introduce a legislative mechanism for the sharing of parental rights and duties between unmarried parents by formal agreement and avoiding the need to go to court (see for example Pearsons at p.418). Section 22 of the Children’s Act, discussed above, introduced a legislative mechanism by which parental responsibility and rights agreements could be entered into. I note that under this new regime, which is purported to be more friendly towards unmarried fathers, there is a requirement of registration of the agreement with the family advocate or for it to be made an order of the court. This being an improvement on the situation existing at the time of removal or retention of the subject children, in late 2005, it seems that the father had no enforcement mechanism, he had the rights to go to court and have the matter determined by reference to the best interests of the child rather than by reference to any agreement entered into by the parties. There was no agreement with legal effect.

Inadequacy of expert evidence provided on applicable law in South Africa

I have referred to the circumstances in which the legal opinion was obtained from the South African lawyers earlier in these reasons. The Full Court has had reason to refer to similar concerns in a decision delivered in 2000.
The Full Court addressed evidentiary concerns about the law applicable in the country of habitual residence in P and Commonwealth Central Authority [2000] FamCA 461 (Nicholson CJ, Buckley & Kay JJ) (non-reportable) from par 66:
66. Before leaving this Matter, we would record Concerns That We Expressed During The Course Of The Hearing About The Evidence Concerning The Greek Civil Code. We Do Not Have To Face The Dilemma Of Conflicting Expert Testimony That Was Presented To Hale J In S V H (Abduction: Access Rights) [1997] 1 Flr 971 At 974. That Case Concerned Conflicting Expert Evidence As To The Effect Of Italian Access Orders And The Rights Of An Unmarried Italian Father To Determine His Child's Place Of Residence. Her Honour Said:-
"It is regrettable, to say the least, that an English court is faced with such a conflict between foreign lawyers on a point of such importance. I bear in mind the observation of Staughton LJ in Re B (A Minor) (Abduction) [1994] 2 FLR 249, 268, that we should resist the temptation to make our own findings as to foreign law and stick to the expert evidence. But where that evidence is in conflict, we have to do the best we can."
67. In this case, there is no conflicting expert testimony. The only evidence we have, scant as it may be, is that of the father's Greek lawyer. It accords with what appears to us to be an appropriate interpretation of the effect of the Greek order.
68. It was disappointing that the evidence as to the Greek law depended upon a pithy communication from only one source, the lawyer for the father in the proceedings in Greece. We are not critical of the fact that it was the evidence of a lawyer for one of the parties. It was open for the mother to have adduced contrary evidence but she did not do so. However, in our view, having regard to the resources that would be available to an institutional litigant such as the CCA through its counterparts, we would have thought that it could have provided to the Court at first instance and to ourselves, a more comprehensive and authoritative opinion as to the Greek Law.
69. We would also draw attention to the mechanism for resolving doubt contained in Article 15 of the Convention which is given domestic effect in Australia through reg 17(2). Regulation 17 is as follows:
17 (1) On application, a court may by order declare that:
the removal of a child from Australia to a convention country; or
the retention of a child in a convention country;
was wrongful within the meaning of Article 3 of the Convention.
(2)The court may request a responsible Central Authority to arrange for the person, institution or other body making application in relation to the return of a child to a convention country, or the retention of a child in Australia, to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention."
70. We appreciate that taking such a course risks the introduction of delays which are antithetical to the purpose of the Convention. The majority judgment in De L v Director-General, Department of Community Services and Another(1996) FLC 92-706;20 Fam LR 390 referred to such considerations in its discussion of the separate representation of children in proceedings under the Regulations:
The presence of separate representation should not hinder and indeed should assist, the prompt disposition of Convention applications.
The Convention requires the judicial or administrative authorities of Contracting States to "act expeditiously in proceedings for the return of children" (Art 11). The system established for Australia by s 111B and the regulations is one which engages the judicial power of the Commonwealth. Regulation 15(2), in its present form, obliges a court, so far as practicable, to give 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". Prompt listing for hearing is one thing; an over-hasty and insufficient hearing is another. That point is made in the concluding terms of reg 15(2) set out above." (at FLC 83,456;Fam LR 403)
71. In our view, where the question of wrongful removal is a live issue in dispute and it is practicable to do so, it may be prudent for the relevant Central Authority of Australia to request that its overseas counterpart invoke the Article 15 mechanism or for the Court at first instance to make a request under reg 17(2).
In the present case I believe it would have been very helpful to have “a decision of a competent authority” in South Africa to determine the status of any agreement which may have existed between the parties. In particular, whether such an agreement would have had legal effect at the relevant date.
The delay in this case has been extensive already and by the time I came to consider the case it was not a real option to make an Order under Regulation 17.

If there was an agreement, whether it amounted to “rights of custody” as required by the Regulations

Whether the agreement provided rights of access rather than rights of custody

Having determined that there was no agreement and even if there was an agreement that it did not have legal effect I do not propose to consider this aspect of “rights of custody” arising from the agreement.
I will however consider the assertion by the Applicant that the father did have rights of custody irrespective of the agreement because he had the right to apply for an injunction to prevent the mover removing the children from South Africa.
Variation exists amongst Convention countries as to whether rights of access or contact amount to rights of custody in the absence of a right to determine the place of residence of a child. This situation is exacerbated in part by the different wording in the adoption of the text of the Convention in Article 5 across signatory States as well as the inevitable differences in judicial interpretations of this notion. There is particular divergence in New Zealand, with the courts there taking a more liberal construction.
However, the Full Court recently gave detailed consideration to the definition of rights of custody and the issue of access or contact in Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321 (see particularly the joint judgment of May and Thackray JJ from par 104 to 167). It is now clear that in Australia, the Applicant must show that the father had the right to determine the place of residence of his children in order to establish rights of custody: see Reg 4(2) and Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321. Consideration of this case as well as the international position on this issue is undertaken below.
As international case law on this issue stems from Article 5 of the Convention, it is worthwhile setting out this Article in full:
For the purposes of this Convention –
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
In Australia, Art 5 is adopted in Reg 4(2) of the Family Law (Child Abduction Convention) Regulations 1986, which provides that “… rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.”
In Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321, May and Thackray JJ discussed both Australian and international decisions and noted the discrepancy amongst Convention countries as to whether the words ‘shall include’ in Art 5 and Reg 4(2) mean “must include” or simply “includes”. They settled on the Australian interpretation of Reg 4 in Jiang and Director-General Department of Community Services [2003] FamCA 929 In that case the court said “rights of custody” requires that the bundle of rights held by the left behind parent must include a right to determine the child’s place of residence.
In their reasons, May and Thackray JJ referred at [116] to a passage of Finn, Holden and Mushin JJ in Jiang and Director-General Department of Community Services [2003] FamCA 929, where their Honours said at [59] and [60]:
It might perhaps be thought that the fact that the father has been designated joint legal custodian under the law of Georgia would be sufficient to conclude that for purposes of the Regulations he has rights of custody.
However, reference to the somewhat unsatisfactory definition of rights of custody in Reg 4 ..., and also to the language of Article 5 of the Convention ... suggest that "rights of custody" under the Regulations, or under the Convention, must include the right to determine the child's place of residence.
I also have regard to the recent decision of the House of Lords in Re D (a Child) (abduction: rights of custody) [2007] 1 All ER 783. This decision was also referred to in Wenceslas and Director-General, Department of Community Services (supra), acknowledging the need for consistency in interpretation across signatory countries. In Re D (a Child) (abduction: rights of custody) (supra), Baroness Hale of Richmond (with whom the other members of the House of Lords agreed on this point) said at [25]:
Article 5(b) provides that ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. Thus it was envisaged that the right to have the child to stay away from his home might still amount to ‘rights of access’ rather than ‘rights of custody’. It is quite clear from the explanatory report of Professor Elisa Pérez-Vera (April 1981) that the original parties to the convention drew a deliberate distinction between rights of custody and rights of access and did not intend that mere rights of access should entitle a parent to demand the summary return of the child. As Professor Pérez-Vera pointed out (para 65), such an approach would ultimately lead to ‘the substitution of the holders of one type of right by those who held the other’.
[Underlining mine]
In Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321, May and Thackray JJ concluded at par 165 - 167:
166. Given the desirability of consistency in matters relating to the interpretation of international conventions, and especially in the absence of informed argument on both sides of the present appeal, we are of the firm view there is no reason for us to depart from the approach adopted by the Full Court in Jiang.
167. Hence, we conclude that mere rights of access or contact are insufficient to constitute rights of custody, unless accompanied by the right to determine the place of residence of the child. In other words, the right to determine the place of residence of the child is not just sufficient, but necessary to establish "rights of custody" for the purposes of the Regulations.
I am bound by the Full Court decision in Wenceslas and Director-General, Department of Community Services (supra). As a result, the applicant must establish that any rights the father had in relation to access or contact included a right to determine the place of residence of the children. Only then will these rights amount to rights of custody for the purpose of the Convention. The Applicant has filed to make out that case to my satisfaction.

The right of veto

As discussed above, the Australian courts regard the right to determine the place of residence of a child as crucial to establishing rights of custody: Reg 4(2); Wenceslas and Director-General, Department of Community Services (supra). This is often referred to in Hague convention matters as the “right of veto”, or the right to retrain the leaving party from removing the children from the jurisdiction.
In the present case there is dispute as to whether the father’s consent was required to remove the children from South Africa. Firstly, the mother contends that the father’s consent was not required to issue the children with South African passports and that this is evidence that he had no right of veto. Secondly, the Applicant contends that unmarried fathers hold the right to apply for an interdict restraining mothers from removing children from the jurisdiction and that thus amounts to a right of veto. I consider these issues below.

Consent to issue of passports

The mother contends that the father’s consent was not required to issue South African passports for the children, and thus the father had no right of veto. The mother says in her affidavit sworn 18 October 2007 at par 36:
36. I caused for the children to be issued with South African passports on 15 September 2005. Attached and marked ‘Annexure D’ and ‘Annexure E’ are relevant pages of [T]’s and [K]’s respective South African passports. Also attached and marked ‘Annexure F’ is a booklet from South African Department of Home Affairs. The last sentence of that booklet states:
‘If a child is born out of wedlock, only the biological mother’s consent is required to issue this passport’.
…
38. I used my children’s South African passports to leave South Africa. The second page of Annexures C and D attached this affidavit showed that my children did in fact leave South Africa on 27 December 2007 using their respective South African passports.
39. My children’s Australian passports were obtained only to assist their arrival in Australia without any fuss.
40. [The father] signed the children’s Australian passports applications in my presence. I refute his claim that he did not sign those documents.
The fact that it is not necessary in South Africa to have the consent of the father of an ex-nuptial child to obtain a passport for the child in that country adds weight to the mothers’ submission that the father did not have the right in South Africa to determine the place of residence of the child.
Whether the mother did or did not forge the fathers’ signature for the purpose of obtaining Australian passports for the children seems irrelevant to the matters to be determined by me in this case.

The right to apply for an interdict preventing removal of the child

The Applicant submits that the right of an unmarried father to apply for an interdict preventing removal of a child from South Africa amounts to a right of veto. In support of this assertion the applicant relies upon W v F 1998 (9) BCLR 1199 (N). In this case Pillay AJ in the High Court of South Africa, Natal Provincial Division considered an application by an unmarried father to apply for an interdict restraining a mother from removing a child from the jurisdiction pending the finalisation of an action to determine custody. This decision acknowledges that an unmarried father at common law has no rights of custody. However, Pillay AJ also acknowledges that the child’s welfare is central to the matter of access and this will be available to the father if this is found by the court to be in the child’s best interests.
Even if the father has a right to apply to the courts and seek an interdict restraining the mother from removing the child from South Africa this is not enough for the Convention. Regulation 4 requires that the father have rights of custody, including a right of veto, immediately prior to removal or retention. The mere right to apply for an interdict does not constitute the right to object to removal of the child from the jurisdiction. It is merely a right to apply to accrue that right. It also seems clear that the injunction must be in aid of a primary application for parenting orders. The father had made no such application to the court and as such did not hold the right to object to removal through operation of the law at the time of removal.
The issue of whether a right of veto over removal of a child from a home country gives rise to rights of custody was considered recently by the House of Lords in Re D (a Child) (abduction: rights of custody) [2007] 1 All ER 783. The Baroness Hale of Richmond (with whom the rest of the Court agreed on this point) gave detailed consideration to international case law. This included the decision of the Family Court of Australia in JR v MR (22 may 1991, unreported) and the first instance decision of Lindenmayer J in Director General, Dept of Families, Youth and Community Care v Hobbs [1999] FamCA 2059, both of which followed the English decision in C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER 465, [1989] 1 WLR 654 in deciding that “rights of custody” should include cases where parental consent is required to remove the child from the country of residence. Her Ladyship concluded at par [37] and [38]:
[37] Therefore, in common with the understanding of the English and Scottish courts hitherto, and with what appears to be the majority of the common law world, I would hold that a right of veto does amount to 'rights of custody' within the meaning of art 5(a). I see no good reason to distinguish the court's right of veto, which was recognised as 'rights of custody' by this House in Re H (child abduction: rights of custody) [2000] 2 All ER 1, [2000] 2 AC 291, from a parental right of veto, whether the latter arises by court order, agreement or operation of law.
[38] I would not, however, go so far as to say that a parent's potential right of veto could amount to 'rights of custody'. In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child's upbringing, including relocation abroad, this should not amount to 'rights of custody'. To hold otherwise would be to remove the distinction between 'rights of custody' and 'rights of access' altogether. It would be also inconsistent with the decision of this House in C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961, [1990] 2 AC 562. There an unmarried father had no parental rights or responsibility unless and until a court gave him some; but he did, of course, have the right to go to court to seek such an order. This was held not to amount to 'rights of custody' within the meaning of art 5(a). Nor could a subsequent order grant him such rights if by then the child's habitual residence had been changed.
[Underlining mine]
Clearly, the father’s right to apply to the court for an interdict restraining removal is at most a “potential right of veto” and thus according to Re D (supra), this is not sufficient to establish rights of custody.

In Secretary of the Dept of Human Services - State Central Authority v CR (2005) 196 FLR 18; (2005) 34 Fam LR 354; FLC 93-243; [2005] FamCA 1050, Kay J discussed this issue at paragraphs [47] - [57]:
[47] In their authoritative text, Messrs Beaumont and McEleavy, The Hague Convention on International Child Abduction, Oxford University Press, 1999, when discussing the underlying principles that led to the inclusion of the return of a child after the expiration of 1 year said at 204:
To return a child after he has spent a substantial period of time away from his State of habitual residence is however very different from the classic Convention case: the summary return in the immediate aftermath of an abduction. Indeed the Chairman of the XIVth Session went too far as to state that Article 12(2) does not sit easily with the other provisions …
[48] As already discussed in TS, Nicholson CJ did not perceive that the establishment of the proposition that a child was settled in his new environment carried a particularly heavy onus. At the other extreme is the Scottish decision of Soucie v Soucie (1995) SC 134 (Soucie), where the Inner House upheld a decision to return a 3-year old child where the evidence indicated the child had a close relationship with her grandparents, had several friends in the area, was enrolled in a local playgroup, was shortly to go to a nursery school and had been living in the same house with her mother for almost 2 years. The court posed the question to be answered as being:
… whether the child is so settled in her new environment that the court would be justified in disregarding an otherwise mandatory requirement to have the child returned. This is another way of saying that the interest of the child in not being uprooted is so cogent that it outweighs the primary purpose of the convention, namely the return of the child to the proper jurisdiction so that the child’s future may be determined in the appropriate place.
[49] Their Lordships went on to say that in considering the proviso to Art 12 what must be clearly shown is that the settlement in a new environment is so well established that it overrides the otherwise clear duty of the court to order the return of the child:
The facts founded on by the respondent are such as might be expected to be found in any case of a young child living with its mother … [i]t is clear from the facts of this case that if an order is made for the return of the child the mother will go with the child and accordingly that emotional security and stability can be maintained …
[50] Given the mandate of 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 ; (1996) FLC 92-706 that in construing the exceptions to the mandatory return provisions under the regulations no additional gloss should be given to the words used, it is clear that the question posed by the Scottish Court in Soucie, namely whether uprooting a settled child to give effect to the mandatory return provisions, cannot help determine the first question that must necessarily be asked, namely whether the child is now settled in its new environment. Rather, that question arises if a court finds it has a discretion to return a child that is so settled.
[51] The question is not whether the return of the child will unsettle it, but simply whether the child is so settled.
[52] Giving the words their natural meaning I feel compelled to conclude that JDR is settled in his new environment in the sense that he has adjusted to it and appears to be a happy and contented child. This is not to say that he would not be as equally happy and contented in Arkansas were he there accompanied and cared for by his mother who has been his primary caregiver, to the total exclusion of his father, for the past 15 months. However, as I have said the test is not whether he would be unduly unsettled by a forced return.
…
[56] In Aulwes v Mai [2002] NSCA 127 the Nova Scotia Court of Appeal (Cromwell JA, Freeman and Roscoe JJA concurring) expressed the underlying philosophy of the settled exception to return as follows:
[78] … It is fundamental to the whole scheme of the convention that the best interests of an abducted child should generally be determined by the courts of the place of habitual residence. As pointed out by Pérez-Vera, there is a strong link between this objective and the settled exception. The exception recognizes that after a child has become settled in a new environment, return should take place only after an examination of the merits of the custody rights being exercised with respect to the child by the courts of the place in which the child has become settled. In short, the settled exception ought to apply where the policy in favour of entrusting the best interests of the child to the courts in the place of habitual residence is no longer a strong one in the circumstances of the particular case.
[57] The settled exception needs to be read in the context of a Convention aimed at discouraging a unilateral decision being made about a child’s country of residence (usually by one parent) and with achieving a prompt return of the child to the forum best suited to deal with issues surrounding his or her future. In Re HB (Abduction: Children’s Objections) (No 2) [1998] 1 FLR 564 Hale J (as she then was) (at 568) said:
… the object of the Hague Convention is set out in its preamble. In essence this is to further the best interests of children by ensuring their speedy return to the country where they have been habitually resident. Once the time for a speedy return has passed, it must be questioned whether it is indeed in the best interests of a child for there to be a summary return after the very limited inquiry into the merits which is involved in these cases …
The Honourable Justice Kay in "The Hague Convention - Order or Chaos" (2005) 19 Australian Journal of Family Law at page 258 (footnotes omitted) says:
Two different approaches have been adopted in relation to the question of whether the child is settled. According to the more liberal approach, a child will be found to have settled where it has lived almost exclusively within its new household. However, the more restrictive approach, adopted by the United Kingdom, requires that the child be integrated into the outside environment and the community — integration into the new family is not sufficient. In Graziano v Daniels, the Full Court of the Family Court of Australia adopted the English approach that the test of ‘settled’ is more exacting than that the child is happy, secure and adjusted to his surrounding circumstances. However a differently constituted Full Court in Director-General, Department of Community Services v M & C held that Graziano imposed an improper gloss on the wording of the Convention, since the Convention wording is to be given its ordinary meaning: De L. The Full Court confirmed M & C in Townsend v Director-General, Department of Families, Youth and Community Care.
In England the definition of ‘settled’ remains restrictive. Although in Collopy v Christodoulou the Colorado District Court refused to order the return of a child to the United Kingdom after the child had lived in Colorado for 20 months, this can be contrasted with a decision of the Ohio Court of Appeal in Re Petition for Coffield, where the court refused to find that a child abducted from Australia had settled in the United States notwithstanding that three years had elapsed. The court said:
At trial, the appellant did not show that Ryan had developed the connections to the community which a normal child of his age would, ie the appellant did not show that Ryan had developed relationships with other individuals besides those which the appellant specifically chose. Under these circumstances, the appellant failed to carry his burden of proof.
In Re H; Re S (Abduction: Custody Rights), the House of Lords held that the reference in Art 12 to the one-year period clearly indicated that, for the purposes of the Convention, removal and retention were events occurring on a specific occasion. The latter concept was not a continuing state of affairs.
The evidence about whether the children are settled in their new environment is found in the affidavit evidence and the report prepared by Ms A dated December 2007.
In the mothers affidavit she describes how the children have settled into life in Australia. T attends a pre-school two days per week. She is cared for at other times at the mothers’ home by her parents when the mother works. The children mix with family and friends during leisure time.
K is now nearly 8 years of age. She has had two entire years of schooling in Australia.
She attends Sunday school as part of a church community.
The report of Ms A explores whether the children are emotionally settled. She explores matters which seem to me to be well outside the brief which required her to consider if the children were emotionally settled. I am sure her comments in the report are of benefit to the parties.
In relation to the child K Ms A says:
Her parents’ separation remains unresolved for her, not least because it is apparent she has not been given permission to remember her father let alone discuss him or see him. Consequently, she is experiencing emotional turmoil and anxiety, which precludes her from being emotionally settled.

In relation to the child T Ms A says:
While [T] remembers less if her earlier life, there was no doubt that she remembered her father affectionately, and was keen to renew this relationship. She kept seeking re-assurance from him, indicating that she too is struggling to understand what has happened to her.
…
[At 881] While these children are physically settled in their current environment, have developed friendships and routines and preferred activities, their emotional settlement is yet to be addressed. If they were to return to South Africa, they will need to be properly prepared for the changes, and able to farewell friends and be given the means to remain in contact. This would then be a less traumatising experience for them. Their close relationship with their maternal grandparents also needs to be taken into account. They would be unlikely to successfully negotiate such a change without the presence and support of their mother, to whom they have their primary attachment.
This is an unusual circumstance as Ms A clearly predicts emotional turmoil and unsettled emotions for the children if they are now removed from Australia. On the other hand she says that K is not well settled because she has not been allowed to continue her relationship with her father in any form since she left South Africa. The description of the meeting between K and her father by Ms A is suggestive of a warm and close relationship between them.
It is clear that the relationship between the parties when they were together was conflictive and that has not changed. It is hard to see that things would be any better for the children if they were returned to South Africa.
I have no real guidance as to what a “settled emotionally” might mean in the context of a separated family. It is the courts experience that the vast majority of children are very sad about the breakdown of their parents relationship. Many children want their parents to reconcile and nearly all of them want the parents to stop fighting. In those circumstances given the yardstick applied by Ms A it seems unlikely that any child from a separated family where there is the type of conflict which almost always attends proceedings under the convention would ever be seen as emotionally settled.
I think that all that it can really mean is that the child is emotionally attached to the parent or significant carer, is secure in that attachment and there are no other significant signs of emotional disturbance. The significant signs would include significant behavioural problems, failure to fit in to schooling and other activities and failure to apparently thrive in the new environment. In this case there are no such signs in the children that they are emotionally disturbed by their current environment.
It is now two years after the children were removed from South Africa. The Convention is designed to see a speedy return to the country of habitual residence as that place is likely to be the best place for the determination of matters relating to the care of children. The convention is primarily about forum for legal proceedings. Where the children have settled in a new environment it seems the convention recognises that place as now the appropriate forum to determine the best interests if the children.
I cannot see that the return of these children to South Africa would advance their cause or their best interests. If they were to return then they would have the advantage of being in closer proximity to their father and therefore if it was ultimately determined to be in their best interests to spend significant time with him. On the other hand it is clear that if the mother was required to return to South Africa she would be most unhappy about that and no doubt would seek to be able to remove the children to Australia. From what I have seen of the mother’s evidence there seems little doubt that the mother’s quality of parenting would be affected by having to live in South Africa.
I determine that the children are settled in Australia.
If I be wrong in my assessment of whether the children are settled in Australia I continue on to consider whether there is still a discretion to decline the return order.

If settled, does the Court retain the discretion to order return of the children?

If the children are settled, the Court is not obliged to order return. However, there is uncertainty in decisions of the Full Court of Australia as to whether the Court still holds residual discretion to order return in these circumstances or whether the Court must dismiss the application. Note that if the application is dismissed the parties would still be able to bring proceedings under the Family Law Act.
I record here that the father has filed an application for final and interim orders in the Family Court of Australia. In that application which was lodged on the last day of the hearing before me he was represented by Mr Tockar of counsel. The application for final orders is still pending in the Family Court. I made interim orders for the father to spend time with the children.
Richard Chisholm in Australian Family Law, LexisNexis Online at “[CAC reg 16.19] Whether court may make an order for return where the child is settled in new environment” (accessed 21/12/07) said:

“It is an important and unresolved question whether, where the child is settled in the new environment and so the conditions of reg 16(2)(b) are not satisfied, the court has a discretion whether to order the child's return.
The authorities are inconsistent. Some decisions in the 1990’s suggest that there is such a discretion: Families, Youth & Community Care, Director General, Department of v Thorpe (1997) 141 FLR 44; FLC 92-785; Soucie v Soucie [1995] SLT 414. However in State Central Authority and Ayob (1997) 21 Fam LR 567 at 575; FLC 92–746, Kay J, after referring to some English decisions to the effect that such a discretion existed, expressed the view that there is no such discretion under the Convention. Instead, where the child has been settled for a year before the application is filed, the Convention simply ceases to apply. Any orders relating to the child would have to be made pursuant to proceedings under Pt VII of the Family Law Act. The remarks were obiter, since his Honour did not find that the child was ‘settled’, but Kay J has ‘remained steadfast’ that his ruling was correct: Secretary of the Dept of Human Services - State Central Authority v CR (2005) 196 FLR 18; 34 Fam LR 354; FLC 93-243; [2005] FamCA 1050.
In England the Court of Appeal (applying the words of the Convention, which are not identical to the regulations that implement the Convention in Australia) disagreed, holding, after a detailed review of the authorities in a number of countries, that there was a residual power under the Convention to do so: Cannon v Cannon [2004] All ER (D) 252 (Oct); EWCA Civ 1330; 3 FCR(UK) 438; [2005] 1 WLR 32; 1 Fam Law R 169.
This important issue has been left open in other Australian decisions: see Department of Families, Youth and Community Care v Moore (1999) 150 FLR 59; 24 Fam LR 475; FLC 92-841; [1999] FamCA 284 at paragraphs [75] - [77]; Secretary, Attorney-General's Dept v TS (2000) 161 FLR 392; 27 Fam LR 376; (2001) FLC 93-063; [2000] FamCA 1692 (Nicholson CJ). Department of Community Services v M (1998) 149 FLR 1; 24 Fam LR 178 Paragraph [98]; FLC 92-829; [1998] FamCA 1518 (: ‘We should say however, that we are not necessarily persuaded that Kay J's view is correct.’) It is submitted (RC) that Kay J is right, although admittedly his conclusion represents a minority view internationally.”

The Honourable Justice Kay in "The Hague Convention - Order or Chaos" (2005) 19 Australian Journal of Family Law at page 259 - 260 says (footnotes omitted):
The consequences of a finding that a child is settled where an application is made after one year is in dispute. In State Central Authority v Ayob, I held that where one year has passed and a child is settled the Convention has no further application. In M and C, the Full Court of the Family Court commented that, although it was unnecessary to determine the issue, they were not necessarily persuaded by the view that no judicial discretion remains after one year when a child is settled. In Director-General of Department of Families, Youth and Community Care v Moore, the Full Court noted ‘the very great importance of the question’ but opted to wait for a case with more argument on the issue before expressing a more conclusive view. In the English case of Re L (Abduction: Pending Criminal Proceedings), Wilson J favoured the notion that a judicial discretion remains where a child is settled after one year. Pérez-Vera expresses a clear view on the issue:
it is clear that after a child has become settled … its return should take place only after an examination of the merits … which is outside the scope of the Convention … [The] obligation [to order return] disappears whenever it can be shown that ‘the child is now settled in its new environment.
In Antunez-Fernandes v Connors-Fernandes, the court took a contrary view. In ordering the return to France of children who had become well settled in the United States, the court held:
Establishment of the ‘well settled’ exception does not make refusal of a return order mandatory. The court retains the discretion to order the children returned even if an exception applies. 51 Fed Reg 10,509 …
Although more than one year has elapsed since their abduction, Mrs Fernandes should not ultimately benefit from the effects of her own actions and the barriers Mr Fernandes faced in bringing his petition…
In the recent English decision in Re C (Abduction: Settlement), Singer J agreed with the view I expressed in Ayob, that where a child is settled and more than a year has expired, the Convention no longer applies. His Honour arrived at this conclusion after an extensive analysis drawing on established principles of interpretation. His Honour found that the ‘ordinary meaning’ of Art 12 was clear, that is to mandate the return of the child forthwith unless the child was settled in its new environment. His Honour held that the use of the word ‘unless’ ‘not only removes the obligation to order return but renders it impermissible to do so’. In support of this conclusion, his Honour contrasted Art 12 with Art 13 noting that while the latter provides that a court ‘may’ order return notwithstanding the establishment of an exception, there is nothing in the wording of Art 12 to suggest that where a child is settled a similar discretion exists. The ‘ordinary meaning’ of Art 12 therefore had the effect of removing a settled child entirely from the ambit of the Convention. Although Singer J’s reasoning in Re C has since been adopted in full in the Hong Kong case of AC and PC the Court of Appeal upheld an appeal from his Honour’s judgment with the following words:
the global judicial community in the main construes Article 18 to confer upon the court a discretion nevertheless to order return in a case where the defendant has established both that the proceedings were commenced more than twelve months after the abduction and that the child is settled in a new environment.

In the recent decision of the House of Lords in re M (FC) and another (FC) (Children) (FC) [2007] UKHL 55 the Baroness Hale of Richmond discussed whether the Court has discretion under the Convention to order return of a child that was found to be settled in the new environment at para 20 to 31:
[20] On one view, adopted by Singer J in Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam), [2005] 1 FLR 127, where the second paragraph of article 12 applies, a finding that the children are now settled in their new environment takes the case outside the Hague Convention altogether. Article 12 defines the scope of the duty to return. It contemplates that that duty may continue indefinitely, provided that the proceedings have begun in time. It also contemplates that the duty will continue even if the proceedings have not begun in time. But the latter duty only applies "unless" the children have become settled. Article 12 thus tries to draw a principled line between the claimant who does bring proceedings in time, who should not be prejudiced by delays in the system, and the claimant who does not, who should not succeed under the Convention once the child has become settled. As Professor Perez Vera explains,
"...insofar as the return of the child is regarded as being in its interests, it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it - something which is outside the scope of the Convention." (para 107)
The rule while "perhaps arbitrary" was the "least bad" solution to the problem.
[21] Furthermore article 12 does not expressly contemplate a residual discretion to return. Its wording is different from the qualifications in article 13. Article 18 does not confer any new power to order the return of the child, but simply provides that the provisions of the Convention do not limit any other power which the court may have to order the child's return. It is contemplating powers conferred by the ordinary domestic law rather than by the Convention itself. As Professor Perez Vera explains,
"This provision,...which imposes no duty, underlines the non-exhaustive and complementary nature of the Convention. In fact, it authorises the competent authorities to order the return of the child by invoking other provisions more favourable to the attainment of this end. This may happen particularly in the situations envisaged in the second paragraph of article 12, i.e. where, as a result of an application being made to the authority after more than one year has elapsed since the removal, the return of the child may be refused if it has become settled in its new social and family environment." (para 112)
[22] Support for this view can therefore be drawn both from the wording of the Convention itself and from the Explanatory Report. It is also the view taken by those academic commentators who have considered the matter. In an early article on the Convention, "International Child Abduction by Parents" (1982) 32 University of Toronto Law Journal 281, at 314, John Eekelaar states that if the abductor succeeds in showing that the child is settled, "the court will be free to decide the case on a full review of its merits". It is also supported by Paul Beaumont and Peter McEleavy, The Hague Convention on International Child Abduction, 1999, at p 209, who suggest that article 18 should be ignored entirely in this context, as "an unfortunate example of a provision having been accepted only by a wafer-thin majority at the drafting stage", and by Nigel Lowe, Mark Everall and Michael Nicholls, International Movement of Children: Law, Practice and Procedure, 2004, at para 17.33. It was certainly the view of the late Professor Peter Nygh, formerly Nygh J of the Family Court of Australia, in the passage cited at para 28 below.
[23] Judicial support can be found in the observations of Kay J in the Family Court of Australia in State Central Authority v Ayob (1997) FLC 92-746 and again in State Central Authority v CR [2005] Fam CA 1050. On the other hand, other Australian cases had assumed the existence of a discretion: see Director-General of the Community Services v Apostolakis (1996) FLC 92-718 and Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 The point was, however, left open in two cases before the full court: see Director-General of the Community Services v M and C (1998) FLC 92-829 and Director-General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841.
[24] The contrary view was taken by the Court of Appeal in Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 FLR 169, on appeal from Singer J in Re C. On this view, article 12 merely establishes when the mandatory duty to return exists. What is to happen when it does not is left to implication. The wording "shall also order the return of the child, unless..." is just as capable of supporting the inference of a discretion thereafter as is the wording "is not bound" and "may also refuse" in article 13. Each article limits or qualifies the duty of return and if the one imports a discretionary power of return into the Convention then the other can do so too. Article 18 is as capable of referring to powers arising under the Convention as it is to powers arising from other sources. Indeed, the wording "at any time" may be more consistent with powers arising under the Convention, because article 16 expressly precludes the courts of the requested state from deciding "on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention".
[25] Before Re C there were dicta to this effect in cases where the one year time limit had been exceeded but settlement had not been found: see Re S (A Minor) (Abduction) [1991] 2 FLR 1, per Purchas LJ at 24, Re N (Minors) (Abduction) [1991] 1 FLR 413, per Bracewell J at 416, and also obiter but for different reasons in Re M (Abduction: Acquiescence) [1996] 1 FLR 315, at 320, per Thorpe J and in Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433, at 440, per Wilson J.
[26] In Scotland, the Inner House, in Soucie v Soucie 1995 SC 134, cited Re N and assumed that a discretion would have arisen under article 18 had settlement been found. In Ireland, the Supreme Court, in P v B (No 2) (Child Abduction: Delay) [1999] 4 IR 185, also cited Re N, but found settlement and declined to return the child. In the United States, the authorities reviewed by Singer J in Re C suggest that the debate has centred around whether the one year period in the second paragraph of article 12 should be extended by a principle known as "equitable tolling" so as to ignore the passage of time while the child's whereabouts have been actively concealed from the claimant parent. In New Zealand, the Convention has been given effect, not by scheduling the relevant articles to an implementing Act, but by translating its provisions into domestic legislation. The Care of Children Act 2004, in section 106(1), provides that the court "may refuse" to make an order for the return of the child in each of the situations provided for in articles 12 and 13; thus "it is clear from the language of these provisions that although a court is not obliged to return a child who is settled in New Zealand if application for return has been made more than a year after the child's wrongful removal, it may nevertheless do so if it thinks it appropriate": see Secretary of State for Justice (as the New Zealand Central Authority on behalf of TJ) v HJ, SC 36/2006 [2006] NZSC 97, per Elias CJ at para 9. This indicates, therefore, the view of the New Zealand legislature rather than the New Zealand judiciary as to the meaning of article 12.
[27] This is as far as the comparative researches of counsel have taken us. It would be putting it too high to say that there is a strong tide of international judicial opinion in favour of a discretion in settlement cases. On the other hand, Kay J in Australia and Singer J in England are the only judges to have expressed a contrary view. When the decision of Singer J was reversed and the case sent back for the issues of settlement and the exercise of discretion to be decided afresh, Kirkwood J found that the child was settled here and in the exercise of his discretion refused to order her return: see Re C (Abduction: Settlement)(No 2) [2005] 1 FLR 938. There appears to be no case until this in which the return of a settled child has been ordered.
[28] That, therefore, is how things stand in the United Kingdom, unless your lordships accede to the invitation of both Mr Henry Setright QC on behalf of the mother and Mr Teertha Gupta on behalf of the children to overrule the decision in Cannon v Cannon. We have not been invited to overturn the long line of authority holding that, once one of the exceptions in article 13 has been made out, there remains a discretion to return the child under the Hague Convention rather than under the ordinary law. However, our attention has been drawn to the contrary view expressed by Professor Nygh, in "The international abduction of children", in Children on the Move, How to Implement their Right to Family Life, edited by the distinguished team of Jaap Doek, Hans van Loon (Director of the Hague Conference on Private International Law) and Paul Vlaardingerbroek, 1996, at p 42:
There is no doubt that the court in such a case is not bound to keep the child within the requested state. The question is: can it order the removal of the child in a summary proceeding without consideration of the merits of the dispute?
The English Court of Appeal has taken the view that there does arise a residual discretion upon a ground of opposition to return being established which must be exercised before the court can proceed with the hearing of the merits of the custody dispute. This discretion must be exercised balancing the interests of the child, which should not be treated as paramount for these purposes, against the intention of the Convention that children who have been unlawfully removed or retained should be returned promptly to the country of habitual residence. This practice appears to be contrary to the assumption in para 107 of the Perez-Vera Explanatory Report that in such a case the child's return "should take place only after an examination of the merits of the custody rights exercised over it." The better view may well be that a decision upholding a ground of opposition means that the court of the requested State should assume jurisdiction to deal with the merits of the custody dispute."
[29] In theory at least, therefore, there are three solutions: (1) once any ground of opposition has been made out, so that there is no duty to return the child, the court must consider whether to use other powers, outside the Convention, to return the child; or (2) the article 13 and 20 grounds, being permissive only, contain within them a discretion nevertheless to return the child, but the article 12 ground, not being so limited, does not; or (3) all of the grounds contain within them a discretion to return nonetheless.
[30] Despite its attractive simplicity and the distinction of its source, solution (1) can be rejected. A discretion not to return is imported into the words of article 13 itself. The passage cited from Professor Perez-Vera is taken, as already seen, from her discussion of articles 12 and 18; when discussing articles 13 and 20, she states:
In general, it is appropriate to emphasise that the exceptions in these two articles do not apply automatically, in that they do not invariably result in the child's retention; nevertheless, the very nature of these exceptions gives judges a discretion - and does not impose upon them a duty - to refuse to return a child in certain circumstances. (para 113)
Thus article 13 clearly envisages that the discretion may result in a decision to return within the Convention procedures. Those procedures, involving as they do the central authorities of each Contracting State and, in this country at least, favourable legal aid for the claimants, are different from those of the ordinary law. The same applies to article 20.
[31] The choice between solutions (2) and (3) is much more difficult. As judges at all levels have acknowledged, there is much to be said for either view. However, I have reached the conclusion, not without considerable hesitation, that article 12 does envisage that a settled child might nevertheless be returned within the Convention procedures. The words "shall...unless" leave the matter open. It would be consistent with all the other exceptions to the rule of return. It would avoid the separate and perhaps unfunded need for proceedings in the unusual event that summary return would be appropriate in a settlement case. It recognises the flexibility in the concept of settlement, which may arise in a wide variety of circumstances and to very different degrees. It acknowledges that late application may be the result of active concealment of where the child has gone. It leaves the court with all options open. Furthermore, the difference between the two solutions is by no means as great as is sometimes assumed. This depends upon the scope of the discretion to be exercised both within and without the Convention procedures.
Baroness Hale considered the difference between exercising a discretion under the Hague Convention and exercising a discretion in wrongful removal or retention cases falling outside the Convention.
Having considered different cases and concepts she concluded as follows:-
[47] In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer "hot pursuit" cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community.
All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighed together with the circumstances which produced the exception and such pointers as there are towards the welfare of the particular child. The Convention itself contains a simple, sensible and carefully thought out balance between various considerations, all aimed at serving the interests of children by deterring and where appropriate remedying international child abduction. Further elaboration with additional tests and checklists is not required.
It seems to me that the decision of Baroness Hale is compelling and that there is a discretion to return children where the court is satisfied that the children are settled.

If there is discretion to order return, should this discretion be exercised in the present case?

I would decline to exercise the discretion in this case.
As pointed out by Baroness Hale in In re M(Family Consultant) and another (Family Consultant)(Children)(Family Consultant), the object of the Convention must be given less significance in cases where the children are settled and significant time has passed by since the removal of the children from their country of origin.
If I be correct in my determination that the convention is principally about legal forum for the determination of disputes relating to the care of children then I cannot see any advantage for the children of the return. The forum in Australia is just as inconvenient for one of the parties as it is for the other if the forum is in South Africa. Importantly the children are in Australia and probably the evidence relating to the current circumstances of the children and their care during the last two years will be more important for a court than the circumstances which existed for the children and the parties prior to that time whilst all were present in South Africa. Thus it is more likely that the evidence from witnesses in Australia will be of greater significance to a court than the evidence of witnesses in South Africa. Further the father has now subjected himself to the jurisdiction of the Family Court of Australia and there are proceedings which can forthwith be moved on to consider the arrangements for the children into the future.
I further consider on the limited evidence before me that it would be quite traumatic for the children to now be relocated again to South Africa. I do not know what arrangements may be made for the care, schooling or housing for the children if they were to return to South Africa. Would they be returning to some familiar places and friends or would it be entirely new for them? In the absence of some acceptable evidence about these matters it would be contrary to the children’s best interests to make an order for return.

Grave Risk

In a document filed by the mother and titled ANSWER the mother opposed the return of the children to South Africa on a number of grounds. One of the grounds was:
3. There is grave risk that the return of my children under the Convention would expose them to physical or psychological harm or otherwise place my children in an intolerable situation.
In the hearing before me this ground was not addressed in any detail. Whilst appreciating that I have not specifically dealt with this ground for refusing the application of the Director General, I have at this time reached a conclusion on a number of grounds, that the children should not be returned.
I appreciate that I may be required to hear argument about this part of the mothers response at a later time should there be a successful appeal in relation to all of the other adverse determinations made by to the applicants case.

Conclusion

The conclusion I reach is that the children should not be returned and I will therefore dismiss the Application filed on the 13^th July 2007.

I certify that the preceding one hundred and eighty four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate

Date: 24 December 2007