Director-General, Department of Community Services and Frampton

[2007] FamCA 1064

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & FRAMPTON [2007] FamCA 1064

FAMILY LAW - APPEAL – CHILD ABDUCTION – The mother, a Kenyan national overstayed her visa in the United Kingdom – She married a Scot and they had one child – Faced with deportation from the United Kingdom she took the child to Kenya hoping to be granted a visa to return to the United Kingdom – After the visa was refused she and the child came to Australia – The father then made a request for the return of the child via the United Kingdom Central Authority – On appeal from an order refusing to return the child to Scotland the State Central Authority asserted, and it was conceded by the mother, that the trial judge was in error by classifying the removal as a removal from Kenya (a non-Convention country) – The wrongful removal complained of was from Scotland – There was a finding that the father had acquiesced in the removal by saying to the mother that he hoped she would enjoy her life in Kenya – A finding of acquiescence enlivens a discretion not to return – Conceded by the State Central Authority that there was a grave risk of harm to the child if the child was to return without the mother – The finding of grave risk enlivens a discretion not to order a return – Held that the trial judge was in error in holding that the child’s welfare could only be assured by the imposition of conditions that were too numerous and onerous – The appropriate conditions to be applied in this case were that the mother obtain a visa that would permit her to enter and remain in the United Kingdom pending the outcome of proceedings relating to the child, the provision of airfares for the child and mother, and the provision of financial assistance until the mother could  make an application to an appropriate United Kingdom court – The fulfilment of these conditions can be easily measured – Appeal allowed – Return of the child subject to compliance with conditions ordered

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1989 (Cth)

DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081; (2001) 21 Fam LR 569
McDonald v Director-General,  Department Of Community Services NSW (2006) FLC 93-297; (2006) 36 Fam LR 569
Re K (Abduction: Consent) [1997] 2 FLR 212
State Central Authority v Ayob (1997) FLC 92-746; (1997) 21 Fam LR 567
State Central Authority and B [2002] FamCA 804
Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264; (2006) 35 Fam LR 489

APPELLANT: Department of Community Services

RESPONDENT: Ms Frampton

FILE NUMBER: SYC 1445 of 2007

APPEAL NUMBER: EA 76 of 2007

DATE DELIVERED: 11 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Sydney

JUDGMENT OF: Kay, Warnick and Boland JJ

HEARING DATE: 22 August 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 May 2007

LOWER COURT MNC: [2007] FamCA 450

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Tockar

SOLICITOR FOR THE APPELLANT: Legal Services Unit, Department of Community Services

COUNSEL FOR THE RESPONDENT: Mr Holmes (solicitor)

SOLICITOR FOR THE RESPONDENT: Slade Manwaring

ORDERS

1. The appeal be allowed.

2. The order made by the Honourable Justice Le Poer Trench on 18 May 2007 be set aside

3. The State Central Authority and the father of the child make such arrangements as are necessary for the child L to return to Scotland in the company of her mother by 30 November 2007 or other date agreed upon between the mother and the State Central Authority.

4. That the Registrar of the Family Court of Australia hand over the passports of the mother and child to the legal representatives of the mother upon the presentation of these orders to facilitate their return to Scotland in accordance with order 3.

5. That the mother forthwith sign all documents and do all things necessary to apply to the appropriate United Kingdom authorities for a visa that will enable her to accompany the child L to the United Kingdom and remain in the United Kingdom for a period of not less than six months to enable the resolution of proceedings in the United Kingdom concerning parenting orders appropriate for the child.

6. That the mother notify the State Central Authority as to the outcome of her visa application as soon as it is known.

7. That upon the father being notified that the mother has obtained an appropriate visa to enter the United Kingdom the father within 21 days thereafter:

   (a)book and pay for airline tickets for the mother and L to return to Scotland and provide a copy of the travel itinerary to the State Central Authority for forwarding to the mother;  

   (b)deposit into an account nominated by the mother prior to her return AU$5,000 to be used by the mother in the support of herself and the child upon her return to Scotland. 

8. In the event that the mother:

   (a)complies with her obligations under these orders to forthwith apply for a visa and in the event that the visa is refused; or

   (b)in the event that the father fails to provide the return airline tickets; or

   (c)in the event that the father fails to provide the sum required by way of support for the mother and the child by the due date

   then the return order shall lapse and the application for return of the child shall be discharged. 

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 76 of 2007
File Number: SYC 1445 of 2007

Department of Community Services

Appellant

And

Ms Frampton

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by the Director-General, Department of Community Services, NSW as the State Central Authority against an order made by the Honourable Justice Le Poer Trench on 18 May 2007 dismissing an application for the return of a child to Scotland.  The application had been filed pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1989 (Cth).

2. The operation of the 1980 Convention on the Civil Aspects of International Child Abduction (known as the Hague Convention) is governed in Australia by s 111B of the Family Law Act1975 (Cth) and the regulations made pursuant to that section namely the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The Convention has been in force between Australia and the United Kingdom since 1 January 1987.

3. The trial judge’s orders were challenged on the following three bases: 

   ·First, it was asserted the trial judge was in error in his determination of the issue of the habitual residence of the child. 

   ·Secondly, it was asserted the trial judge was in error in finding the father had acquiesced in the retention of the child in Kenya. 

   ·Finally, it was asserted the trial judge had erred in the exercise of his discretion, having found the child would be exposed to a grave risk of psychological harm if separated from her mother, by failing to consider the imposition of appropriate conditions to facilitate her return to Scotland with the mother.

4. At the hearing of the appeal the mother’s solicitor conceded the father had a right of custody for the purpose of the Convention at the time the child was removed from Scotland.  Our focus in these reasons is, as a consequence of that concession, directed to the question of appropriate conditions.  

BACKGROUND

1. The child L born in February 2002 is the daughter of Mr F and Ms Frampton.

2. The father was born in Scotland and is 49 years of age.  The mother was born in Kenya and is 29 years of age.  In March 2000 the mother entered the United Kingdom on a visitor visa.  In April of that year she commenced a relationship with the father.

3. In September 2000 the mother’s visitor visa expired.

4. The mother and father married in the United Kingdom in February 2001 and separated in August 2003 with the mother and child leaving the family home and save for a brief and temporary reconciliation in February 2004, have remained apart since that time.

5. In August 2004 the father commenced parenting proceedings in Scotland.

6. On 19 August 2004 the father obtained an ex parte temporary residence order for the child.  That order was reversed on 9 September 2004.

7. In March 2005 the mother filed for divorce.

8. On 31 May 2005 the Home Office delivered a decision rejecting the mother’s further application to stay in the United Kingdom, and advised her that if she failed to leave the United Kingdom arrangements would be made for her removal.

9. In April 2006 the mother bought two return tickets for herself and the child to go to Kenya and the day after arriving in Kenya on 6 April 2006, advised the father that that is where she and the child were.

10. The mother believed that she could regularise her United Kingdom visa requirements by making a fresh application to return under what she was told was the “Fresh Talent: Working in Scotland Scheme”.  She thought this would only take about four days.  She duly lodged a visa application but it was rejected by the Home Office on 25 April 2006.

11. The mother then in June 2006 answered an advertisement for qualified health care workers in Australia.  After a short period here in Australia she obtained permission from the Australian government to bring L to Australia.  She returned to Kenya, where she had left L in the care of her aunt, and then brought L to Australia on 22 October 2006.  The following day, the mother notified the father that L was in Australia with her.

12. An application under the Hague Convention seeking L’s return to Scotland was filed on 1 March 2007.  The application asserted that the child had been removed from Scotland without the consent or acquiescence of the father.

13. After the breakdown of the marriage in Scotland the mother formed a relationship with Mr B.  In April 2006 when it became apparent the United Kingdom government would not give her another visa and whilst she was living in Kenya, she asked her husband to sign divorce papers which would then put her in a position to marry Mr B and then apply for a spouse visa so that she could return to Scotland with L.  The mother asserted that the father refused to sign the documents and when she asked what was the next thing that she should do, the father replied:

    “Enjoy your life in Kenya”.

14. The father did not admit nor deny that assertion but indicated that at all relevant times he was keen on having the child L back in Scotland.  He claims to have only traced the wife’s whereabouts to Australia with the assistance of a private investigator and to have immediately put in train his application for a return order.

THE TRIAL JUDGMENT

1. The trial judge having considered the relevant authorities which discuss habitual residence concluded that the father’s remarks to the mother to “enjoy your life in Kenya” constituted his acquiescence to the child remaining indefinitely in Kenya, thus having the effect of bringing to an end the child’s habitual residence in Scotland and that at the time the child was brought to Australia the place of the child’s habitual residence was Kenya.  Kenya is currently not a Convention country so the wrongful removal or retention complained of was not covered by the Convention and the regulations.

2. His Honour also concluded that if he was in error in relation to that part of his decision, the mother had established that a return to Scotland would expose L to a grave risk of psychological harm or place her in an intolerable situation on the basis that the mother could not reasonably be expected to return with the child because:

   ·she could not get an appropriate visa; and

   ·she would not have any visible means of support once she arrived in Scotland.  

THE APPEAL

1. It was conceded at the appeal by the solicitor for the mother that his Honour was in error in classifying this case as an abduction from Kenya.  What was being asserted by the State Central Authority was the wrongful removal of the child from Scotland.  As will become apparent from our reasons, any sojourn of the child in Kenya between the time the child was removed from Scotland and the time the child appeared in Australia was not particularly relevant to determining whether the Convention applied. 

2. Regulation 2(1C)(b) reads:

   (1C)A reference in these regulations to a child who is removed:

   …

   (b)from a convention country … to Australia;

   includes a reference to the removal of the child…to Australia…whether or not the child is first removed to another country.

3. As was discussed by Kay J in State Central Authority v Ayob (1997) FLC 92-746; (1997) 21 Fam LR 567 the essential prerequisites for making a return order under the regulations include:

   ·a wrongful removal from a Convention country to Australia or the retention in Australia of a child whose habitual residence is in a Convention country; and

   ·the retention or removal being in breach of the custodial rights of some other person, in this case namely the father.

4. Kay J in Ayob (above) also discussed the drafting, effect and operation of regulation 16(3)(a)(ii) in light of the wording of article 13 the Convention.  In that case the child was wrongful removed from the United States, initially to Malaysia a non-Convention country, and then to Australia where an application was made for the child’s return.  His Honour said at FLC 84,074; Fam LR 577:

   The regulation 16(3) ground that was relied upon in this case was that the person making application for the return of the child, the father:

   Had consented or subsequently acquiesced in the child being removed to or retained in Australia.

   Again the reference to Australia after the removal causes some degree of conflict with the words of the Convention.  The exceptions set out in article 13 of the Convention make reference to acquiescence in “the removal or retention”.  As I have already indicated, the act of removal is the crossing of the international border of the country from where the child should not have been removed in the first place; that is from the United States of America.  So, really, the issue is whether the father consented to or subsequently acquiesced in the child being removed from the United States of America rather than being removed to Australia.

5. It was admitted in this case that the father had custodial rights over the child in Scotland and that the child was wrongfully removed from Scotland without his consent.  Even if the father could be said to have subsequently acquiesced in the removal of the child by his words and lack of conduct in Kenya, at best that would have raised the discretion in the Court not to order the return of the child in accordance with the provisions of regulation 16(3)(ii).  It was the same discretion considered by the trial judge in relation to the grave risk defence.

Alleviating a grave risk of harm

1. It was conceded by the State Central Authority at the trial and on the appeal that there would be a grave risk to L if the mother was unable to return to the United Kingdom with her.  The existence of that grave risk enabled the trial judge to refuse to make a return order.  The exercise of the discretion thus enlivened required the trial judge to give consideration to whether conditions could be imposed that would alleviate the risk.

2. In Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264; (2006) 35 Fam LR 489 at paragraph 78, the Full Court endorsed the approach of the trial judge who took appropriate matters into account in the exercise of that discretion in rejecting matters raised under regulation 16 as “defences”. In that case Bennett J at first instance cited the unreported judgment of State Central Authority and B [2002] FamCA 804 delivered 24 September 2002, which said (citations omitted):

   33.The existence of the regulation 16(3) defence means that the court may refuse to order the return of the child under the Convention.  This raises the question of the exercise of a discretion.  The regulation offers no express terms as to how that discretion may be exercised.  Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services:

   if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return.  The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [regulations]’ enable it to be said that a particular consideration is extraneous….  That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.

   In TB v JB (formerly JH) Laws and Arden LJJ, Hale LJ dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10 ½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband.  It was clear that the eldest child did not wish to return to New Zealand.  Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence)  which were:

   (a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;

   (b)the likely outcome (in whichever forum) of the substantive proceedings;

   (c)the consequences of the acquiescence;

   (d)the situation which would await the absconding parent and the child if compelled to return;

   (e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and

   (f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.

3. Earlier in Re K (Abduction: Consent) [1997] 2 FLR 212, Hale J (as she then was) when speaking of the discretion whether or not to order the child’s immediate return to Texas said at page 218 – 220 (emphasis added):

   In exercising that discretion a variety of factors, which will depend, to some extent, upon the circumstances of the case, have to be weighed in the balance.  One of the factors is the most appropriate forum within which any dispute between these parents about the future of their daughter should be decided. 

   …

   I am entitled to take into account the likely outcome of any such proceedings…  It may, therefore, be surmised that it is more likely than not that they would conclude that C should live with her mother.  Whether they would also conclude that she should have leave to come to this country again, I know not.  It is, perhaps, more difficult to predict the outcome of that sort of application.  But there would certainly be a reasonable chance of its success were such an application to be made in the reverse situation in this country.

   …

   In addition to that I take into account that the father has offered support, but that the financial situation is such that this is a very difficult matter for him…

   …

   The final thing which I have to weigh in the balance is the purpose of the Convention.  This is something that the courts attach the greatest possible importance.  We all want children to be returned as soon as possible to the place from which they have been wrongfully removed.  The reasons why the Convention exists to secure this are partly that is bad for children to be uprooted from one jurisdiction to another and partly to fulfil the obvious proposition that if there is a dispute between parents as to the future of their child it is better dealt with in the courts of the country where the child has hitherto been habitually resident because that is where the best information lies.   

1. Gaudron, Gummow and Hayne JJ said in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081; (2001) 21 Fam LR 569 when speaking of the prospect of imposing conditions on any return order once a discretionary defence is established:

   40.…  If…on the evidence, one of the…conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened.  There may be many matters that bear upon the exercise of that discretion.  In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established.  Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry.  If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.

2. The comments of the Full Court in McDonald v Director-General, Department Of Community Services NSW (2006) FLC 93-297; (2006) 36 Fam LR 569 (“McDonald’s case”) about the need for conditions to be capable of being understood and met seem apposite here:

   29.It seems to us that if conditions are to be imposed…then those conditions need to be clearly defined and be capable of being objectively measured as to whether or not the conditions have been fulfilled.  The conditions need to be met before the return can take place.  In the event that they are not met, the order needs to contain a mechanism that clearly recognises the return is no longer required to take place.  All this needs to be done within a tight timetable to meet the requirements of the Convention that is founded upon the concept that prompt return to the place of habitual residence is appropriate to protect a child from the harmful effects of its wrongful removal or retention.

An appealable error identified

1. The trial judge expressed the view that any conditions that would need to be imposed in this case were very similar to the conditions which his Honour attempted to impose at first instance in McDonald’s case.  The trial judge concluded that if he imposed similar conditions, albeit more precisely worded, they would run foul of the Full Court in that they would likely be so numerous and onerous as to seem not possible to reasonably implement. 

2. His Honour expressed the view that if a return could only be achieved by the imposition of numerous and onerous conditions the application for return should be refused.  We do not seek to disagree with that observation however we do not think that this case required either numerous or onerous conditions to effect a return.  We conclude that the trial judge fell into error in concluding that a return could only be effected by the imposition of numerous and onerous conditions. 

3. The conditions that were sought to be imposed in McDonald’s case were far more extensive, imprecise, and raised issues of lack of enforceability than those that are necessary in these proceedings.  They included:

   ·the provision of visas by the Belgium Government which permitted the mother to work for remuneration in Belgium;

   ·the equivalent of a protection order be in place prior to the mother and child returning to Belgium;

   ·the mother to be provided with an income by the father or by the Belgium Government sufficient to enable her to maintain the child and herself at the same standard of living as was presently being enabled in Australia by the Australian Government;

   ·the mother and child be provided with suitable accommodation in Belgium available to them immediately upon arrival in that country;

   ·the mother be provided with legal aid or its equivalent in Belgium to enable her to prosecute her family law proceedings, including the consideration of any application she might wish to bring allowing her to relocate to Australia with the child from Belgium;

   ·the mother be able to instruct a solicitor/attorney or equivalent in Belgium to act on her behalf in relation to family law proceedings prior to her departure from Australia; and

   ·the Director-General be satisfied that the mother and child will be able to access appropriate health care, should it be required, in Belgium once they arrive in that country.

Appropriate conditions

1. As already indicated we do not envisage that such complicated conditions are necessary in this case.  It seems to us essential that the mother have the legal ability to enter and stay in the United Kingdom pending the outcome of anticipated proceedings about L’s future parenting.  It further appears essential considering the mother’s financial position, that the means of transporting L and the mother to the United Kingdom be provided.  Finally it seems essential that some financial arrangement be made to ensure the mother and child have the ability to find accommodation upon their arrival, and have provision for their day to day living expenses, at least until an application for support can be made by the mother to an appropriate court.  

2. Whether or not the mother can return with the child will depend upon whether or not the United Kingdom authorities issue the mother with an appropriate visa.  The answer to that question will not be known until the mother makes an application. 

3. The evidence discloses that there are two possible visas available namely a normal visitor visa and a visa available under paragraph 246 of the Immigration Rules for a person exercising rights of access to a child resident in the United Kingdom.  

4. Under paragraph 41 of the United Kingdom Immigration Rules the requirements to be met by a person seeking leave to enter the United Kingdom as a visitor are that he or she

   (i)is genuinely seeking entry as a visitor for a limited period as stated by him [or her], not exceeding 6 months; and

   (ii)intends to leave the United Kingdom at the end of the period of the visit as stated by him [or her]; and

   (iii)does not intend to take employment in the United Kingdom; and

   (iv)does not intend to produce goods or provide services within the United Kingdom, including the selling of goods or services direct to members of the public; and

   (v)does not intend to undertake a course of study school; and

   (vi)will maintain and accommodate himself or herself and any dependants adequately out of resources available to him [or her] without recourse to public funds or taking employment; or will, with any dependants, be maintained and accommodated adequately by relatives or friends; and

   (vii)can meet the cost of the return or onward journey; and

   (viii)is not a child under the age of 18.

5. The requirements that need to be met under paragraph 246 of the Immigration Rules are:

   (i)the applicant is a parent of a child who is resident in the United Kingdom;

   (ii)the parent or carer with whom the child permanently resides is resident in the United Kingdom;

   (iii)the applicant produces evidence that he [or she] has access rights to the child in the form of:

   (a)a Residence Order or a Contact Order granted by a Court in the United Kingdom; or

   (b)a certificate issued by a district judge confirming the applicant’s intention to maintain contact with the child;

   (iv)the applicant intends to take an active role in the child’s upbringing;

   (v)the child is under the age of 18;

   (vi)there will be adequate accommodation for the applicant and any dependants without recourse to public funds in accommodation which the applicant owns or occupies exclusively; and

   (vii)the applicant will be able to maintain himself [or herself] and any dependents adequately without recourse to public funds; and

   (viii)the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

6. It seems the more applicable visa is the normal visitor visa but the difficulties with a normal visitor visa is that it is limited in its extent to six months and that it prohibits the applicant from taking employment whilst in the United Kingdom.  It requires an applicant to maintain and accommodate himself or herself and any dependents adequately out of sources available without recourse to public funds or taking employment or to be maintained and accommodated adequately by relatives and friends.  It requires the applicant to meet the cost of return or onward journey. 

7. The “Rights of Access” visa is applicable only if the applicant is the parent of a child who is resident in the United Kingdom.  At the present time L is not resident in the United Kingdom although she has the right to reside there.  It also requires the applicant to hold “a residence order or contact order granted by a court in the United Kingdom or a certificate issued by a district judge confirming the applicant’s intention to maintain contact with the child”.  It also requires that there be adequate accommodation for the applicant and any dependents without recourse to public funds in accommodation which the applicant owns or occupies exclusively, and that the applicant would be able to maintain himself or herself and any dependents adequately without recourse to public funds.

8. The answer to whether or not the mother will ever qualify for either visa can only be tested by the mother making an appropriate application to the United Kingdom authorities.  Any return order would have to be conditional upon the mother making an application within a reasonable time and a favourable answer being received also within a reasonable time otherwise the order will necessarily have to lapse. 

9. The second necessary requirement would be the provision of finance or aid to enable the mother and child to return.  This would entail the provision of airline tickets and funds to provide housing, and day to day living expenses once they arrive in Scotland.

10. It is appropriate in our view that the fulfilment of the conditions can be easily measured.  The purpose of the conditions is to ensure that the child’s return will not place her in grave risk of harm and to enable the Scottish courts to take jurisdiction over the child once she is returned.  To that end we are of the view that it is appropriate that airline tickets be purchased to enable the mother and child to travel from Australia to their proposed destination in Scotland and that a fund be made available in advance to ensure that the mother has at least an opportunity to be established for a short period of time before the Scottish courts can determine the further provision of funds for her. 

11. The mother’s evidence as scant as it was, was that she had no funds to provide for the support of herself and L in the United Kingdom.  She is living in a relationship with Mr B who is himself a citizen of the United Kingdom and has three children resident in Scotland.  His evidence was very limited and said:

    I have no employment in the United Kingdom nor do I have any offers of employment in the United Kingdom. 

    I cannot return to the United Kingdom as I have nowhere to live in the United Kingdom nor any source of income there. 

    I do not own any real estate be it in the United Kingdom or anywhere else.

12. Mr B does have parents living in the United Kingdom who have provided some support towards the mother’s legal costs in these proceedings. 

13. The father’s evidence was:

    I would be quite happy to make contributions toward hotel costs for my wife and also my daughter although I would be in the position to have the care of [L] whilst she was in Scotland… 

    I am in employment and do have sufficient income to make a contribution, either by way of instalments or a lump sum. 

14. It seems to us that the provision of a reasonable amount of funds to enable the wife to obtain accommodation for herself and L until at least such time as she can reasonably be expected to apply to the Scottish courts should be a necessary precondition to her return.  We have no particular evidence of how much money would be appropriate and the best we can do is make a estimate of it.  We propose the provision of AU$5,000 (£2,000) prior to the wife and child being required to return.  This is of course in addition to the provision of paid airline tickets.   

Discretion re-exercised

1. In assessing the various considerations as to whether it is now appropriate to refuse to make an order for the return of L if the conditions outlined above are met, it is clear that L’s removal from Scotland was in breach of the father’s rights of custody.  The underlying philosophy of the Convention is that issues concerning L’s future parenting arrangements are best dealt with by her place of habitual residence which was clearly Scotland at the time of her removal.  Although it was not intended to keep L from Scotland for more than a few days, circumstances surrounding the mother’s inability to obtain a visa meant that her return was frustrated.  L’s ties with Australia are of recent origin and she is not so settled that a return to Scotland in her mother’s care can be seen as contrary to her best interests.  Providing the conditions are met in a timely manner, we are of the view that a return order should be made. 

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court 

Associate:

Date: 11 September 2007