Director-General, Department of Family and Community Services and Condor

[2011] FamCA 417

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & CONDOR [2011] FamCA 417

FAMILY LAW - CHILD ABDUCTION - Hague Convention – Rights of Custody – Wrongful retention

Family Law ( Child Abduction Convention) Regulations1986
Convention on Civil Aspects of International Child Abduction
Family Law Act 1975(Cth)

APPLICANT: Director-General,
Department of Family and Community Services

RESPONDENT: Ms Condor

FILE NUMBER: SYC 2985 of 2011

DATE DELIVERED: 9 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 26 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE RESPONDENT: Ms Weislehner

Orders

1. I make the following declarations:

   The Court declares under regulation 17 of the Family Law (Child Abduction Convention) Regulations 1986(Cth):

   (i) That at the time the child M born … June 2007 was removed from Australia on 11 February 2010, the father Mr Condor and the mother, Ms Condor each had rights of custody in respect of the subject child under Australian Law;

   (ii) In the absence of an order of a Court to the contrary, the father continues to have rights of custody under Australian Law and the Convention on Civil Aspects of International Child Abduction (“the Convention”), until a happening or occurrence which makes the application of Australian Law or the Convention, to the subject child, not applicable; and

   (iii) Assuming the Convention is found to be applicable to the subject child and, if no order of a Court interferes with the father’s rights of custody, then, by application of Australian law, the retention by the mother of the child in Germany on 4 August 2010 was a wrongful retention within the meaning of article 3 of the Convention.

IT IS NOTED that publication of this judgment under the pseudonym Director General, Department of Family and Community Services & Condor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2985 of 2011

Director-General, Department of Family and Community Services

Applicant

And

Ms Condor

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the Director-General of the Department of Family and Community Services (“the Director-General”) acting as the New South Wales Central Authority. The Director-General seeks the following orders:

   a)A declaration under regulation 17 of the Family Law (Child Abduction Convention) Regulations 1986 that the retention of M (male) born in June 2007 beyond the agreed period as from 4 August 2010 is a wrongful retention within the meaning of article 3 of the Convention.

   b)A finding that as wrongful retention does not arise until after 4 August 2010 for the purpose of regulation 16 (b) the 12 month period does not run until after 4 August 2010.

   c)Such further or other orders and relief on direction as the Court deems necessary.

Background Facts

1. The following facts are not controversial between the Director-General and the respondent in this case Ms Condor (“the mother”).

2. Mr Condor (“the father”) was born in Australia in 1968 and the mother was born in Germany in 1971. The mother and father met overseas and in June 2005 the mother visited the father in Australia. At that time the parents became engaged.

3. In September 2005 the mother commenced to reside permanently in Australia. The mother and father were married in a civil service in Germany in December 2005 and again in Australia in a Greek Orthodox Church in March 2006.

4. In June 2007 the parties’ only child, M (“the child”) was born. The mother and father lived and worked in Australia until 11 February 2010 when the mother and the child left Australia with the consent of the father for the purpose of holidaying in Germany. At that time they had return airline tickets booked for 8 April 2010. In early April 2010 the father visited Germany and returned on 10 April 2010 without the mother and the child.

5. The following facts may be to some degree controversial. The mother requested of the father to be able to stay longer in Germany during the visit he made to see her (and the child) in April 2010. She undertook to return to Sydney, Australia on 25 July 2010.

6. On 25 June 2010 the father flew to Germany to spend time with the mother and child. Flights had been booked for the mother and child for 25 July 2010 to return to Australia.

7. On 9 July 2010 the father returned to Australia. On 23 July 2010 the mother advised the father that she would not be travelling on 25 July 2010. In July 2010 the mother bought airline tickets for herself and the child to return to Australia on 4 August 2010. She informed the father of this purchase. The father informed the mother that if she did not return on that flight he would seek legal advice relative to compelling the child’s return.

8. On 4 August 2010 the mother and child did not return. The father thereafter sought advice and took steps to move the Australian Government to make a request to the German Central Authority to take proceedings for return of the child to Australia pursuant to the Hague Convention.

9. The father also initiated proceedings in the Family Court of Australia on 3 February 2011 and orders were made by His Honour Justice Rose at Sydney on 22 February 2011. The mother was represented in the Australian proceeding when the orders were made on 22 February 2011. The orders are as follows:

   UPON APPLICATION made to the Court AND UPON HEARING the legal representatives for the parties:

   IT IS ORDERED:

   1. That until further order the husband have sole parental responsibility for the child of the parties relationship [M] born […] June 2007 (“the child”).

   2.That on or before the expiration of seven (7) days from the date of service of the Orders made this day as hereinafter provided the wife shall return the child to Sydney, Australia and inform the husband of the precise particulars of her place of accommodation in Sydney and telephone numbers and shall make arrangements with the husband for him to spend time with and communicate with the child until further order.

   3.That until further order upon the wife returning with the child to Sydney, Australia she is restrained from removing the child from Sydney, Australia without the prior written consent of the husband or further order of the Court.

   4.That until further order the child shall remain in the primary care of the wife.

   5.That Order is made as sought in paragraph 4 of the husband’s Amended Application in a Case filed 15 February 2011 save and except that the word “[an abbreviation of the child’s first name]” is deleted and replaced with the full name of the child “[the child’s full name]”:

   4.That the wife be restrained from agitating any relief in relation to the parenting of [the child] in any Court in any jurisdiction except:

   4.1 the Family Court of Australia, Sydney Registry;  and

   4.2 the petition brought by the husband under the Hague Convention relating to the civil aspects of child abduction in the [City 1] Local Court, Germany.

   6.That the wife pay the husband’s costs of and incidental to the proceedings heard and determined today as assessed and agreed upon or failing agreement as taxed.

   7.That a sealed copy of the Orders made this day and subsequent published Reasons for Judgment shall be served by the husband’s solicitors by email as soon as possible after it has been received and those documents shall be directed to the wife’s German lawyer Dr Hering of Böck Oppler Hering, Lawyers.

   8.That the husband’s Amended Application in a Case filed 15 February 2011 is stood over to the Judicial Duty List at 10.00am on 22 March 2011.

   9.That leave is granted to the wife to file and serve a Response to the husband’s Amended Application in a Case filed 15 February 2011 and any affidavit or affidavits upon which she seeks to rely on or before 4.00pm 15 March 2011.

1. On 15 March 2011 the mother filed a response to the father’s application filed 3 February 2011 in the Family Court of Australia.

2. Included in the material provided to support the application now made by the Director-General is a copy of the orders and reasons for judgment of the District Court City 1, Family Court dated 5 May 2011. That decision is in favour of the father and requires the return of the child to Australia.

3. On 20 May 2011 the mother appealed the decision of the District Court City 1, Family Court. In her written submissions the mother says:

   The dispute before the Courts in Germany is whether the subject child had his habitual residency in Germany or in Australia at the time of the alleged retention, Article 4 of the Convention.

4. In answer to my request that I be provided with a copy of the request made by the German Central Authority to the Australian Central Authority I have been provided with a copy of a letter dated 8 April 2011. The letter sought as follows:

   With respect to the upcoming hearing on 20 April 2011, in order to be on the safe side and to avoid a potential misinterpretation of the judgment of the Australian Family Court dated 22 February 2011 the applicant’s attorney informed us that she would hold it as utmost beneficial if the applicant could submit a decision or other certification according to Article 15 of the Hague Convention (together with German translation) to the Local Court in [City 1].

5. As recited earlier the District Court City 1, Family Court has already delivered a judgment now the subject of an appeal. I am informed that the declarations now sought are to assist the German Appeal Court in its determination.

6. In the proceeding, now under consideration by me, the mother has entered an appearance through her Australian Solicitor, Gisela Weislehner. In submissions Ms Weislehner told this Court that the mother’s appeal is principally challenging the determination by the trial judge in the District Court City 1, Family Court that the child’s habitual residence status as Australian did not change during the period of the time the child was in Germany with his mother.

7. Regulation 17 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) is as follows:

   Regulation 17
   Declaration that removal or retention was wrongful

   (1)   On application, a court may by order declare that:
                   (a)    the removal of a child from Australia to a convention country; or
                  (b)    the retention of a child in a convention country;

   was wrongful within the meaning of Article 3 of the Convention.

   (2)   The court may ask a responsible Central Authority to arrange for the person, institution or other body making a request in relation to the return of a child under the Convention 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.

8. Article 3 of the Convention on Civil Aspects of International Child Abduction (”the Convention”) is as follows:

   Article 3

   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.

   c)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.

9. Regulation 17, as is set out above, enables the implementation of Article 15 of the Convention.

10. The countries who are signatories to the Convention all have their own law in relation to the custody of children. Many of the countries use different terminology to describe what is commonly known as “rights of custody”, as referred to in the Convention.

11. Section 111B (4) and (5) of the Family Law Act 1975 (Cth)(“the Family Law Act”) is as follows:

    Section 111B

    Convention on the Civil Aspects of International Child Abduction

    (4)  For the purposes of the Convention:

    (a)  each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and

    (b)  subject to any order of a court for the time being in force, a person:

    (i)  with whom a child is to live under a parenting order; or

    (ii)  who has parental responsibility for a child under a parenting order;

    should be regarded as having rights of custody in respect of the child; and

    (c)  subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and

    (d)  subject to any order of a court for the time being in force, a person:

    (i)  with whom a child is to spend time under a parenting order; or

    (ii)  with whom a child is to communicate under a parenting order;

    should be regarded as having a right of access to the child.

    Note:The references in paragraphs (b) and (d) to parenting orders also cover provisions of parenting agreements registered under section 63E (see section 63F, in particular subsection (3)).

    (5) Subsection (4) is not intended to be a complete statement of the circumstances in which, under the laws of the Commonwealth, the States and the Territories, a person has, for the purposes of the Convention, custody of, or access to, a child, or a right or rights of custody or access in relation to a child.

12. Applying that section of the Family Law Act it is clear that when the mother and the subject child left Australia on 11 February 2011 for the purpose of a holiday in Germany the father had rights of custody in respect of the child and was exercising those rights.

13. It is a matter of fact to be determined by the German Courts whether the father continued to exercise those rights of custody during the period up to and including 4 August 2010. It seems clear in the face of the non contentious facts in this case that if the father was unable to physically exercise his rights of custody in respect of the child it was only because the mother had failed to return the child to Australia after a holiday in Germany. It is an agreed fact that the father travelled to Germany at times when the child was there with the mother and spent time with the child. There seems no reason to conclude he was not exercising his rights of custody at such times. Exercise of rights of custody is a much wider concept than merely spending face to face time with a child. In Australia, unless there be any order to the contrary, parents share parental responsibility equally and that includes the right to determine where the child lives. Section 61C of the Family Law Act is as follows:

Section 61C

Each parent has parental responsibility (subject to court orders)

(1)  Each of the parents of a child who is not 18 has parental responsibility for the child.

Note 1:       This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

Note 2:       This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.

Note 3:       Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

(2)  Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

(3)  Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

Note:          Section 111CS may affect the attribution of parental responsibility for a child.

1. Section 61B of the Family Law Act is as follows:

   Section 61B
   Meaning of parental responsibility

   In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

2. Those two sections mean that the father was exercising parental responsibility, and by extrapolation rights of custody, in relation to the child whilst the child was/is in Germany until there be an order from a Court of competent jurisdiction to the contrary. It must certainly be the case that the father would have been exercising those rights of custody in Australia were it not for a wrongful retention of the child, by the mother, in Germany.

3. Amongst the material provided to this Court by the Director-General is a translated copy of the reasons for judgment of the learned Judge sitting in the District Court City 1, Family Court issued on 5 May 2011. In that determination the learned Judge found that the child’s place of habitual residence had not changed to Germany during the relevant period. Assuming that the learned Judge’s findings of fact, upon which he relied to make that determination, are not disturbed by an appellate Court I can see no error in applying the Convention to the determination of that issue.

4. As referred to earlier the mother has appealed the decision of the District Court City 1, Family Court delivered on 5 May 2011. She lodged her appeal on 20 May 2011.

5. I am informed by the legal representatives for the Australian Central Authority that a request has been made by the German Central Authority for this Court to make the declarations which are sought in this application. I am told those declarations may be made available to the appellate Court in Germany. I do not consider that it is appropriate for this Court to make the declarations in the form in which they are currently sought. I consider it is for the German Court to make findings of fact upon which to base the determination under the Convention.

6. Where possible this Court would wish to be of assistance to the German Court and to that extent I consider that it is appropriate to make declarations in relation to the status of the father and his entitlement to rights of custody at the time the child was removed from Australia. There appears to be no controversy between the parties about the circumstances of the child or the parents at that time. I consider that in the absence of some finding of fact by the German Court which would disturb that determination it is appropriate to declare that the father’s rights of custody would continue under Australian Law until such time as there was an occurrence which satisfied the German Court that the child no longer fell appropriately within the jurisdiction of Australian Law or the application of the Convention To that end I am prepared to make the declarations as set out in the orders above.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:   

Date:  9 June 2011