Dir. General, Department of Community Services & Moore

[2002] FamCA 403

[2002] FamCA 403

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

BETWEEN  No. SY.5603 of 2001

DIR. GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant/Central Authority

and

MOORE  MARILYN

Respondent/Maternal Grandmother

CORAM:  The Hon. Justice John STEELE

DATE OF HEARING:  15^th, 16^th & 17^th May 2002

DATE OF JUDGMENT:                13 June 2002

JUDGMENT

Appearances:

Mr. Anderson  of Counsel - instructed by Mr. R.C. Best, Director Legal Services, Department of Community Services, 164-174 Liverpool Road, ASHFIELD 2131 appeared on behalf of the Applicant/Central Authority

Ms Boyleof Counsel - instructed by David H. Cohen & Co., Solicitors, DX 11570 SYDNEY DOWNTOWN appeared on behalf of Respondent/Maternal Grandmother.

Ms WearneSolicitor of Legal Aid Commission of New South Wales, DX 5   SYDNEY appeared as Child Representative.

CATCHWORDS

DoCS v MOORE

Coram:  Justice Steele

Hearing Date:  15-17 May 2002

Judgement Date:     13 June 2002

FAMILY LAW- CHILDREN – Hague Convention on Child Abduction – application by mother for child to be returned to United States of America – child brought by grandmother to Australia – child settled in new environment – whether Court has residual discretion to order return of child – ambit of Family Law (Child Abduction Convention) Regulations, regs 15(1) and 16(1) – reg 15 is source of power giving Court general discretion to order a child returned to the country of habitual residence where
reg 16 (1)(b) leaves question open by reason of child being settled in new environment –application dismissed.

Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 approved and applied; Director-General of Department of Community Services v M & C (1998) FLC 92-829 applied; DeL v Director-General, New South Wales Department of Community Services & Anor (1996) FLC 92-706 considered; JLM v New South Wales Department of Community Services (2001) FLC 93-081 considered; State Central Authority v Ayob, SB (1997) FLC 92-746 not followed.

The proceedings involved an Application by the Central Authority seeking orders pursuant to the Family Law(Child Abduction Convention) Regulations (“The Regulations”) for the return of a nine year old boy from Australia where he is living with his maternal Grandmother to the United States where his Mother resides.  The Mother had sole custody rights in the U.S.A. prior to the Child travelling to Australia with the Grandmother.

The only issues related to whether the Grandmother had made out any of the defences which she put forward.  One such defence which the Court found to be established was that the Child was well settled in his new environment (Reg 16(1)(b)).

The Grandmother argued that once that defence was established it was mandatory for the Court to refuse to order the return of the Child since the Regulation properly construed meant that the Court had no residual discretion.

That issue was dealt with in the judgement at paragraphs 44 – 62 to the following effect:-

44) Having regard to these matters and the principles to be applied, I am satisfied that Hayden is settled in his new environment in Sydney.   That raises the issues of:-

(a)Whether there remains a residual discretion to order the return of the child, and

(b)If there is a discretion, the way in which the discretion should be exercised.

(a)Does there remain a residual discretion to order the return of the child?

45) The submission on behalf of the grandmother, is that once a finding is made that the child is settled in his new environment, Regulation 16(1)(b) on its proper construction, requires that the Court refuse to make an order for the child’s return.

46) It is not in dispute that Regulation 16(1)(b) is the appropriate sub-section to apply, since the conceded retention occurred in February 2000 and the Application was filed on 24 January 2002.

47) So far as is relevant, Regulation 16(1) provides:-

“16(1) – Subject to Sub-regulations (2) and (3), on application under Regulation 14, a Court must make an order for the return of a child:

(a)…….

(b)If the day on which the Application was filed is at least one year after the day on which the child was ………. first retained in Australia, unless the Court is satisfied that the child is settled in his …… new environment.”

48) Sub-regulation (2) sets out a list of circumstances in which the Court must refuse to make an order returning the child.  It does not include the circumstance that a child is well settled.  Sub-regulation (3) sets out a number of circumstances in which the Court may refuse to order a child’s return, notwithstanding that the primary ground is made out.  It does not include the circumstance that a child is well settled.   Whilst it is not necessary to set out the terms of Sub-regulation (5), it appears to be included to make it abundantly clear that the discretion referred to in Sub-regulation (3), is an open one.

49) On a simple reading of the regulation itself unaffected by the surrounding provisions or the Convention, it would seem that properly construed, the word “unless” operates to remove the imperative nature of Sub-regulation (1) but does not go so far as to positively require the alternative course to be taken.

50) Regulation 15 relevantly provides:-

“15.(1) If a Court is satisfied that it is desirable to do so, the Court may in relation to an application made under Regulation 14:

(a)make an order of a kind mentioned in that regulation.”

51) Regulation 14 provides for orders to be made for the return of a child to his/her country of habitual residence.   It founds the right of the Central Authority to approach the Court in this case.

52) There may be some argument that Regulation 16(3) is intended to provide an exhaustive list of the circumstances in which the discretion may be exercised but such an argument, it seems to me, cannot be sustained in the face of the ordinary meaning, which should otherwise be attributed to Regulation 16(1).  

53) The submissions by the grandmother’s Counsel, were apparently encouraged by a passage from the Judgment of Kay J. in State Central Authority v. Ayob (1997) FLC 92-746 at 87-072 and 84-073. In that passage, Kay J. stated that he differed from the views expressed by Bracewell J. in Re N. (Minors) (Abduction) 1991 1 FLR 413 @ 417 and Purchas L.J. in Re S. (a Minor) (Abduction) 1991 2 FLR 1 @ 24

54) It should be recorded that the judgment of Purchas L.J. was the judgment of the Court of Appeal and his reasons were adopted by Butler-Sloss and Leggatt L.J.J.   It would appear, however, that a finding was made that the Court could not be satisfied that the child was well settled, so that the reasoning, whilst persuasive, was actually obiter.   Similarly, the judgment of Bracewell J. was given in circumstances where he was unable to be satisfied that the children were settled in their environment (see page 418), so that his earlier statement that a discretion existed, would appear to have also been obiter. 

55) As I understand the reasoning of Kay J., it is that Bracewell J. and Purchas L.J. each seemed to be relying upon Article 18 of the Convention, as a source of power.   It is in the following terms:-

”18.     The provisions of this chapter do not limit the power of a judicial or administrative authority to order the return of a child at any time.”

56) In the admittedly limited reasons given by him, Kay J. seems to suggest that Article 18 is not intended to be a separate source of power but merely a provision which removes from judicial or administrative authorities, any constraints which might derive from the Convention affecting domestic laws or, alternatively, is a provision which precludes the operation of the Convention from working an implied revocation of domestic laws providing such powers.   Whether that be true or not, it seems to me that Regulation 15, on its proper construction, is a source of power giving the Court a general discretion to make an order for the return of a child to his/her country of habitual residence.   It should be read, subject to the detailed provisions of Regulation 16, but where Regulation 16 leaves the question open, it is my view, that Regulation 15 provides the Court with the requisite discretion.

57) In DeL v. Director General (1996) FLC 92-706, the members of the High Court pointed out @ 83-449 that the provisions of the Regulations have to be read with those of the Convention.   In JLM v N.S.W. Department of Community Services (2001) FLC 93-081, the High Court have pointed out, however, that it is the Regulations which govern these matters not the Convention.   I infer that unless the Regulations are in some way unclear or ambiguous, so that assistance as to the meaning of the Regulations may be gained by reference to the Convention, then the regulations should be construed according to their ordinary meaning.

58) It seems to me that there is nothing relating to Regulation 16(1) of the regulations themselves which is productive of ambiguity or any lack of clarity requiring resort to the Convention to determine the true meaning of the regulations.

59) In Secretary, Attorney-General’s Department v. TS (2001) FLC 93-063 Nicholson CJ. at paragraph 118 and 119 discussed the authorities. He did not express a view on the issue. The Full Court in Moore (1999) FLC 92-841 had expressed the view that if such a discretion does exist, then it must be a broad discretion because, unlike Regulation 16(3), the criteria giving rise to the discretion, have not been spelt out.     The Full Court was prepared to assume the discretion did exist but again did not express a view about the matter.

60) These views which I have expressed have travelled along much the same lines as those expressed by Lindenmayer J. in Thorpe (1997) FLC 92-785.   With respect, I agree with what he there said.

61) It is my view that the effect of the word “unless” in Regulation 16(1)(b) is to remove the requirement that the Court order the return of the child, with the result that the question is an open one.   If a separate source of power is required, then in my view it is to be found in Regulation 15(1).

62) Accordingly, it is my view that a discretion does exist to order the return of the child to the U.S.A.