DIRECTOR-GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & RADISSON
[2012] FamCAFC 41
•19 March 2012
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & RADISSON | [2012] FamCAFC 41 |
| FAMILY LAW - APPEAL – HAGUE CONVENTION – Appeal by Director-General, Department of Family and Community Services in her capacity as State Central Authority – Where trial judge dismissed the application of the Central Authority that the father have indirect access to the children by way of telephone calls, Skype, gifts, exchange of photographs and information, face-to-face time in South Africa at least once per year and face-to-face time with the children in Australia – Where trial judge erred in finding that the Court lacked jurisdiction to entertain the application - Where trial judge misunderstood the Regulations and misapplied Castell’s case – Appeal allowed – Matter remitted to the trial division. |
| Family Law Act 1975 (Cth) ss 39 and 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) Regulations 24, 25, 25A and 29 Children’s Act 38 of 2005 (South Africa) ss 18 and 21 |
| Director-General, Department of Families Youth & Community Care & Reissiner (1999) FLC 92-862 Police Commissioner of South Australia & Castell (1997) FLC 92-752 State Central Authority (Secretary of the Department of Human Services) & Du Preez [2006] FamCA 1083 |
| APPELLANT: | Director-General, Department of Family and Community Services |
| RESPONDENT: | Ms Raddison |
| FILE NUMBER: | SYC | 4975 | of | 2007 |
| APPEAL NUMBER: | EA | 101 | of | 2011 |
| DATE DELIVERED: | 19 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Coleman and Murphy JJ |
| HEARING DATE: | 21 September 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 July 2011 |
| LOWER COURT MNC: | [2011] FamCA 612 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Tockar |
| SOLICITOR FOR THE APPELLANT: | Department of Human Services, Legal Services Unit |
| COUNSEL FOR THE RESPONDENT: | Mr Metcalfe |
| SOLICITOR FOR THE RESPONDENT: | Le Vaccaro Lawyers |
Orders
That the appeal be allowed.
The order dismissing the application of the Central Authority filed on 24 November 2010 be set aside.
The matter be remitted for determination of what access the father should have to the children by a judge in the Sydney Registry of the Family Court of Australia other than Justice Stevenson.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Community and Family Services & Raddison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 101 of 2011
File Number: SYC 4975 of 2007
| Director-General, Department of Family and Community Services |
Appellant
And
| Ms Raddison |
Respondent
REASONS FOR JUDGMENT
Introduction and background
In October 2010 the Director-General, Department of Family and Community Services in her capacity as State Central Authority (“the Central Authority”) filed an application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking orders on behalf of the requesting parent (“the father”) who is the father of two children then aged 11 and 7 years respectively. The application sought that the father have indirect access to the children by way of telephone calls, Skype, gifts, exchange of photographs and information, face-to-face time in South Africa at least once per year and face-to-face time with the children in Australia. The mother of the children with whom they reside opposed the application.
The application for access to the children was dismissed by Stevenson J on 29 July 2011 and the Central Authority now appeals that decision.
The application for access to the children followed an application brought by the Central Authority in 2007 for the return of the children to South Africa alleging a wrongful removal under the Regulations. That application was dismissed by Le Poer Trench J on 24 December 2007 on the basis that the father did not have rights of custody.
A short chronology of the background facts are as follows:
a)the father and mother were born in South Africa;
b)in 1997 the father and the mother commenced a relationship but never married;
c)the children were born of this relationship;
d)her Honour found (Reasons for Judgement, paragraph 12) that it was common ground that the father and the mother were living together in a permanent life partnership at the time of the birth of both children;
e)on 27 December 2005 the mother brought the children to Australia without the knowledge or consent of the father (Reasons for Judgment, paragraph 7);
f)on 23 January 2007 the father obtained from the High Court of South Africa an order “declaring that the control and custody of his two minor children … be awarded to the applicant pending an investigation and recommendation by the family advocate.” (Reasons for Judgment, paragraph 7);
g)on 24 December 2007 Le Poer Trench J dismissed an application by the Central Authority for return of the children to South Africa pursuant to the Regulations;
h)on 31 May 2010 the father commenced proceedings through the Office of the Public Advocate in South Africa for access to the children in terms of the Convention on the Civil Aspects of International Child Abduction (“the Convention”);
i)on 24 November 2010 the Central Authority filed an application in the Family Court of Australia initiating proceedings for the father to have access to the children;
j)on 29 July 2010 Stevenson J dismissed the application.
Decision of the Trial Judge
The issues the trial judge identified for determination were:
a)whether the father had rights of access either in South Africa, Australia, or any other Convention country (Reasons for Judgment, paragraph 17);
b)whether the Court lacked jurisdiction to entertain the application if the father had no rights of access either in South Africa, Australia or any other Convention country;
c)in the event of it being found the Court had jurisdiction to entertain the application, what orders would be appropriate to give effect to the Convention.
Before her Honour the Central Authority contended that there were two bases which gave the Court jurisdiction. The first was that the relevant rights of access were conveyed by the Children’s Act 38 of 2005 (“the Children’s Act”) which came into force in South Africa on 1 July 2007. Whereas unmarried fathers had not previously had parental rights, section 21 provided parental responsibilities and rights to unmarried fathers and relevantly provided:
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) …
(3) …
(4)This section applies regardless of whether the child was born before or after the commencement of this Act
Section 18 of the Children’s Act sets out the parental responsibilities provided for by the Act and relevantly says:
18. Parental responsibilities and rights.-(1) A person may have either full or specific parental responsibilities and rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-
(a)to care for the child;
(b)to maintain contact with the child;
(c)to act as guardian of the child; and
(d)to contribute to the maintenance of the child.
(3)Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-
(a)administer and safeguard the child’s property and property interests;
(b)assist or represent the child in administrative, contractual and other legal matters; or
(c)give or refuse any consent required by law in respect of the child, including-
(i)consent to the child’s marriage;
(ii)consent to the child’s adoption;
(iii)consent to the child’s departure or removal from the Republic;
(iv)consent to the child’s application for a passport; and
(v)consent to the alienation or encumbrance of any immoveable property of the child.
(4)Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.
(5)Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).
Her Honour noted in paragraph 12 of her Reasons for Judgment the effect of the Children’s Act which she described as follows:
12.Previously, an unmarried father of children had no parental rights or responsibilities. This Act provided that an unmarried father acquired full parental rights and responsibilities if, at the time of the birth of the child, he was living with the mother in a permanent life partnership. It was common ground that [the father] and [the mother] were living together in a permanent life partnership at the time of the birth of both children.
The Central Authority thus contended at trial that s 21 of the Children’s Act conferred:
· parental responsibilities and rights on unmarried fathers including the father;
· parental rights and responsibilities including a right to maintain contact with the child
and that upon being requested by the Central Authority in South Africa on behalf of the father claiming to have rights of access under a law in force in a Convention country (South Africa) and that those rights have been breached.
And, further, being satisfied that the request was in accordance with the Convention, the Central Authority must under Regulation 24 take action to establish, organise or secure the effective exercise of rights of access to a child in Australia and on that basis the Central Authority had applied to the Court for orders for access between the father and the children.
In addition the Central Authority submitted at trial that the father had obtained from the High Court of South Africa an order awarding him control and custody of the children which implicitly carried with it rights of access and has which also provided a basis upon which the jurisdiction of the Court to make an order for access was invoked.
In a short judgment her Honour dismissed the application of the Central Authority holding that:
a)the Children’s Act provided to the father a legal right to “seek orders” for access to the children in the courts in South Africa, but there was no evidence that he ever did so (Reasons for Judgment, paragraph 13);
b)the father had no rights of access in South Africa pursuant to a court order or an agreement with legal effect (Reasons for Judgment, paragraph 15);
c)the Full Court Authority of Police Commissioner of South Australia & Castell (1997) FLC 92-752 (“Castell’s case”) seemed to be fatal to the Appellant’s application (Reasons for Judgment, paragraph 16);
d)the father had no rights of access either in South Africa, Australia or any other Convention country (Reasons for Judgment, paragraph 17);
e)the Court therefore lacked jurisdiction to entertain the application.
The Grounds of Appeal
The Appellant contends in written submissions in support of an amended Notice of Appeal filed 12 September 2011 that her Honour erred in law in finding that:
i.It was necessary for the father to have had rights of access in South Africa, Australia or any other convention country;
ii.The father had no rights of access in South Africa;
iii.The Court lacked jurisdiction to entertain the application;
iv.The application sought to “create rights of access”;
v.The regulations do not enable the Appellant to apply to the Court to “establish” the rights of access.
For convenience we set out in full the grounds of appeal:
1.That her Honour Justice Stevenson erred in finding that [the father] had no rights of access to his children, [K Raddison] born on … and [T Raddison] born on … (“the children”) either in South Africa, Australia or any other Convention country.
2.Her Honour ought to have held that, by operation of the Children’s Act 38 of 2005 (South Africa) (“the Act”) and, in particular, by virtue of section 21(1)(a) of the Act, the father had rights of access to the children.
3.Her Honour ought also to have found that the father had rights of access to the children by reason of a judicial decision, being the Order made by the High Court of South Africa on 23 January 2007 declaring that the “control and custody” of the children be awarded to the father pending the investigation and recommendation by the family advocate.
4.Her Honour erred in finding that the Act merely provided to the father a legal right to “seek” orders for access to the children in the courts of South Africa. Full parental responsibilities and rights in respect of the children were acquired by the father by virtue of the provisions of section 21(a) of the Act, and section 18(2)(b) of the Act includes the concept of “full parental responsibilities and rights” the right “to maintain contact with the child” (ie. Rights of acess [sic]).
5.Her Honour erred in placing reliance on the fact that the father did not acquire rights of access to the children by virtue of the provisions of section 22 of the Act. In amplification of this ground of appeal, it is contended that:
5.1the provisions of section 22 of the Act do not apply in the circumstances of this case, and that, accordingly,
5.2her Honour erred in relying on the fact that “there was no evidence, and in fact no suggestion, that any agreement between the parents complied with these prerequisites (the requirements of section 22 of the Act) and thus acquired legal effect” to reach the conclusion that “Accordingly, the father had no rights of access in South Africa pursuant to a court order or an agreement with legal effect”.
6.Her Honour erred in holding that the Full Court authority of Police Commissioner of South Africa and Castell (1997) FLC 92-752 “is fatal to the present application”. In amplification of this ground of appeal, it is contended that the present case is distinguishable from the case of Castell on the basis that the father in this case did have rights of access in South Africa which had already been established (both by operation of law and as a consequence of a judicial decision).
7.Her Honour erred in apparently taking into account the fact that no legal effect attached to the agreement that was allegedly entered into between the father and the Respondent in South Africa in 2005. It is contended the father’s rights of access arose by operation of law (and also by Order of the High Court of South Africa) and that it is irrelevant that the alleged agreement had no legal effect.
8.Her Honour erred in finding that the application sought to “create” rights of access. It is submitted that the requisite rights of access had already been established.
9.Her Honour erred in finding that it was necessary for the father to have had rights of access to the children in South Africa, Australia or any other Convention country to afford to Court jurisdiction to entertain the application.
10.Her Honour erred in finding that, in effect, the Family Law (Child Abduction Convention) Regulations 1986 do not allow the Court to “establish” rights of access.
As the Appellant did not argue the appeal strictly seriatim in accordance with the grounds of appeal, we intend to follow the structure in which the Appellant conducted the appeal.
Appeal grounds 9 and 10
The Central Authority contends that following the structure of the Regulations the basis for the orders sought has been established, in particular:
a)the Central Authority received a request from the South African Central Authority on behalf of a person (the father) who claims to have rights of access and who claims these rights were breached;
b)the Central Authority’s request was in accordance with the Convention because the children were in a contracting State (namely, Australia) immediately before the breach of the father’s access rights;
c)the Central Authority contends that s 21(b) of the Children’s Act makes provision for the acquisition by an unmarried father of parental responsibility and rights in relation to a child (including rights of access) and the Children’s Act came into force in 2007, and that pursuant to Orders made by the High Court in January 2007 in South Africa, the father acquired rights of access;
d)the father had parental rights and responsibilities (including rights of access) and the Central Authority was obliged to bring the application to try to establish, organise or secure the effective exercise of those rights in Australia;
e)the mother did not obey the orders made by the High Court nor react to them and must be taken to have breached them. In addition the Central Authority made a formal request for access which the mother refused and was thus in breach of the father’s access rights.
Having fulfilled these criteria the Central Authority contends that an order should have been made.
In summary the Central Authority contends that her Honour erred in finding that the Court lacked jurisdiction to entertain the application (Reasons for Judgment, paragraph 17) and that the trial judge misunderstood the Regulations and misapplied Castell’s case. We agree with these submissions and would allow the appeal on these grounds.
Discussion
Her Honour set out correctly the provisions of Regulation 24(1), the relevant part of which provides:
(1) The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if:
(a)it receives a request from a Central Authority on behalf of a person who claims:
(i)to have rights of access to the child under a law in force in a convention country; and
(ii)that those rights have been breached; and
(b)it is satisfied that the request is in accordance with the Convention. (Our emphasis)
In relation to the words, “establish, organise or secure the effective exercise of rights of access to a child in Australia” her Honour first considered the alleged agreement between the parents for the father to have access to the children. Her Honour considered the requirement of s 22 of the Children’s Act (Reasons for Judgment, paragraph 14) and concluded that there was no evidence that the parents had complied with the prerequisites and that the agreement thus relied upon had not acquired any legal effect (Reasons for Judgment, paragraph 15).
Her Honour concluded accordingly that the father had no rights of access in South Africa pursuant to a court order or an agreement with legal effect. We will return to the issue of a court order in due course but for present purposes suffice it to say that her Honour did not address the extent to which an order made on 23 January 2007 declaring that the “control and custody” of the children be awarded to the father, on an interim basis, constituted a relevant court order for these purposes. However for the present purposes it is unnecessary to consider this issue further at this point.
Her Honour then, at paragraph 16 of the Reasons for Judgment, relied upon Castell’s case and held that it was “fatal to the present application”. The Full Court in Castell’s case had found that rights of access referred to in the Regulations are rights “already established in another convention country either by operation of law, or as a consequence of a judicial or administrative decision, or by reason of an appropriate agreement having legal effect”. The Court also said, relevantly for her Honour’s purposes:
… [W]here there is no existing provision for access/contact of the type to which we have referred, an application cannot be made, as referred to by reg.25, for an order that is necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia by a person, institution or other body having rights of access to the child.
The Court in Castell’s case then went on to say:
In addition, the order for access sought by the Central Authority, in the circumstances of this case, is not an order to which either paragraphs (a) or (b) of reg.25(1) applies. It is not an order that is necessary or appropriate within the framework of the Regulations, as such an order could be sought by the father under the Family Law Act and is not an order that is appropriate to give effect to the Convention or Australia’s obligations under the Convention.
In those circumstances, although an application can be made to the Court pursuant to reg.25 in appropriate circumstances, for orders as set out in the Regulations, that Regulation does not enable the Central Authority to apply to the Court for an order to establish rights of access. (Our emphasis)
Her Honour thus concluded that the father had no rights of access either in South Africa, Australia or any other Convention county and the application of the Central Authority sought to create such rights. As a result her Honour held that the court lacked jurisdiction to entertain the application.
However, in deciding that Castell’s case was fatal to the Central Authority’s application her Honour appears to have been unaware that, following the decision in Castell’s case, the relevant Regulation had been amended specifically to overcome the effect of the decision in Castell’s case. In Castell’s case, decided in 1997, the Court set out what it understood Regulation 25 to then provide and said as follows at page 84,137:
(1)[Central Authority may apply for order to secure exercise of access rights] A Central Authority may apply to a court for an order that is necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia by a person, an institution or another body having rights of access to the child, being:
(a)an order for the issue of a warrant for the apprehension or detention of the child authorising a person named or described in the warrant, with such assistance as is necessary and reasonable and if necessary and reasonable by force, to:
(i) stop, enter and search any vehicle, vessel or aircraft; or
(ii) enter and search premises;
if the person reasonably believes that:
(iii)the child is in or on the vehicle, vessel, aircraft or premises, as the case may be; and
(iv)the entry and search is made in circumstances of such seriousness or urgency as to justify search and entry under the warrant; or
(b)any other order that the Central Authority considers to be appropriate to give effect to the Convention.
However in 2004, Regulation 25 was amended by Statutory Rule 2004, No 371 to read as follows:
25 Request and application for access to child in Australia
(1)If a person, an institution or another body claims to have rights of access to a child in Australia under a law in force in a convention country, the person, institution or other body may send a request to the Commonwealth Central Authority to have arrangements made for establishing, organising or securing the effective exercise of those rights in Australia. (Our emphasis)
(2)If the Commonwealth Central Authority is satisfied that a request is in accordance with the requirements of the Convention and these Regulations, the responsible Central Authority may apply to a court, in accordance with Form 4, for an order under subregulation (4) that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the application relates.
(3)If the Commonwealth Central Authority is not satisfied that the request is in accordance with the requirements of the Convention and these Regulations, the Commonwealth Central Authority:
(a) may refuse to accept the request; and
(b)must, as soon as practicable, inform the Central Authority of the convention country through which the request was made, of the refusal and the reasons for the refusal.
(4)An application to a court by the responsible Central Authority under subregulation (2) may seek any of the following orders:
(a)an order for contact between the child and a person (or persons);
(b)an order for the issue of a warrant mentioned in subregulation (9);
(c)any other order that the responsible Central Authority considers appropriate to give effect to the Convention.
(5) If an application is made under subregulation (2):
(a)a person on whom a copy of the application is served must file an answer, or an answer and cross-application, in accordance with Form 4A; and
(b)the responsible Central Authority may file a reply in accordance with Form 4B.
(6)In determining an application made under subregulation (2) seeking an order of the kind mentioned in paragraph (4) (a), the court must have regard to the matters set out in section 111CW of the Act.
(7) The court may make:
(a) the order or orders sought in the application; or
(b)any other order that the court considers appropriate to give effect to the Convention.
(8) The court may make an order under subregulation (7) regardless of:
(a)whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or
(b)if the child was removed to Australia — when that happened; or
(c)whether the child has been wrongfully removed to, or retained in, Australia.
(9) For paragraph (4) (b), a warrant:
(a)is a warrant that authorises a person named or described in the warrant, with such assistance as is necessary and reasonable, and, if necessary and reasonable, by force:
(i) to find and recover the child; and
(ii)if that person reasonably believes that the child is in, or on, a vehicle, vessel, aircraft or premises, and the circumstances are so serious and urgent as to justify the entry and search under the warrant:
(A)to stop, enter and search the vehicle, vessel or aircraft; or
(B) to enter and search the premises; and
(iii)to deliver the child to the person named in the warrant; and
(b) must be made in accordance with Form 2C.
(10)Nothing in this regulation prevents the responsible Central Authority from seeking an amicable resolution under Article 7 of the Convention in relation to the rights of access to the child. (Our emphasis)
Sub-paragraph 4 was subsequently rearranged without substantive change and the Regulation in its current form became effective on 19 July 2007.
Thus the basis upon which the decision in Castell’s case was reached falls away with the subsequent amendments to Regulation 25 which now specifically enables the Court to establish rights in Australia wherever necessary and to make orders for contact with a child in Australia whether or not an order exists in a Convention country. (See, further, Explanatory Memorandum to 2004 amendments).
Her Honour’s analysis of the Regulations and reliance upon Castell’s case constitutes an error.
The Need for Rights of Access
In the appeal this was acknowledged by counsel for the respondent who conceded at the hearing before us that all that is required to be established is that there are rights of access that exist at the relevant time and there does not need to be any particular order or formal agreement in the requesting State. In fact counsel conceded that the amendments in 2004 were directed at curing the particular problem that had lead to the determination in Castell’s case (Transcript 21 September 2011, page 20, lines 18-31).
Notwithstanding counsel for the mother’s concession on this point, the mother continued to assert that the father did not have rights of access as required by Regulation 24(1)(a), that therefore the application cannot be an effective request and therefore the court lacked jurisdiction. The Respondent contended that although it was conceded that the court had jurisdiction to establish effective exercise of rights of access to a child and that her Honour had erred in finding to the contrary, nevertheless jurisdiction could only be conferred upon the court if under Regulation 24(1) the father had rights of access to the child in Australia. In support of this argument the mother relied upon Regulation 24(1)(a)(i) quoted above.
Counsel for the mother contended that the point at which the effective rights of access to a child in a Convention country arose, which he contended was South Africa, was the time when the child was habitually resident in that country. In other words, prior to the removal of the child from South Africa. In written submissions, at paragraph 29, counsel put the argument as follows:
29.The purpose of the Regulations do not however extend to permitting the establishment of access rights in Australia, if no such access rights exist in the requesting country as at the relevant time. The relevant time is not the time the request is made by the requesting country. The relevant time remains as set out in Article 4 of the Convention. As [the father] did not have any rights to access when the children were habitually resident in South Africa there has been no breach of access rights for the purposes of Article 4. For these reasons it is submitted that the Full Court authority in Castell remains good law and there was no error by the primary judge in relying upon it to dismiss the Application.
As counsel for the mother conceded, neither the Act nor the Regulations say that the child must be habitually resident in the country at the time access rights arose. Yet, counsel argued construing the Convention as a whole it is quite clear that the Convention is directed to preserving the rights that exist in the country of habitual residence once a child goes to another country and thus the rights of access must have arisen before the child left South Africa and while there was habitual residence.
In our view this is contrary to intent of the Convention, in particular s 111(b)(1E) of the Act which provides:
(1E)Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of:
(a)whether an order or determination (however described) has been made under a law in force in another Convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or
(b)if the child was removed to Australia--when that happened; or
(c)whether the child has been wrongfully removed to, or retained in, Australia.
Regulation 25A(3), which was made pursuant to s 111(b)(1E), provides:
(3) The court may make an order under subregulation (1) regardless of:
(a)whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or
(b)if the child was removed to Australia -- when that happened; or
(c)whether the child has been wrongfully removed to, or retained in, Australia.
Counsel for the mother also relied upon Article 4 of the Convention. Article 4 provides:
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 4 comes within Chapter I which deals with the scope of the Convention. In our view Article 4 means no more than the Convention applies to a child who was habitually resident in a Contracting State before any breach of custody or access rights. In other words the Convention applies only to children who are habitually resident in a State which is a party to the Convention.
The Regulations themselves do not use the expression as used by counsel for the mother “at the relevant time”. No such condition appears in the Regulations, particularly in Regulation 24. In Director-General, Department of Families Youth & Community Care & Reissiner (1999) FLC 92-862, Lindenmayer J held that “…it matters not that the child's place of habitual residence at the time of the breach of the access rights was not in the same Contracting State as that in which the access rights arose.” We respectfully agree. (See [68] – [69] of his Honour’s Reasons).
In this case there is (and was at trial) no issue that the child is habitually resident in a Contracting State (Australia) and was so resident immediately before the breach of the father’s rights of access established by operation of law in South Africa.
Whilst the issue before Lindenmayer J in Director-General, Department of Families Youth & Community Care & Reissner (supra) was concerned with the fact that the child was no longer in the original country of habitual residence when the breach occurred, the wording of Article 4 of the Convention does not constrain the right of a parent to invoke the Regulations where the right of access was established in a Contracting State where the child had been habitually resident, even if those rights occurred after the child had left that country and was habitually resident in another Contracting State.
In our view there is no basis to read into Article 4 a requirement that access rights need to have been established in the country of habitual residence prior to the removal of the children. Article 4 merely describes those children to whom the Convention applies, namely those who are habitually resident in a Contracting State before any breach of any custody or access rights.
That conclusion is further supported by the fact that there is a separate chapter, Chapter IV which deals with rights of access, and by the specific terms of Article 21. In furtherance of Article 21, Regulation 4 of the Regulations is applicable.
Thus we do not agree with the submission of the respondent that her Honour’s decision could be supported on a different basis.
We note that on a number of occasions in argument counsel for the mother referred to the Court lacking jurisdiction to make the orders, perhaps in support of her Honour’s characterisation of the basis upon which she dismissed the application.
In our view it is not a matter of the jurisdiction. The Court has jurisdiction under s 39(5) of the Act to entertain the application by the Central Authority on the basis of Regulation 24 which, as has been seen, mandates the Central Authority to take action to “establish, organise or secure” the effective exercise of rights of access to a child in Australia if the relevant conditions within it are met.
It was conceded by counsel for the mother that the Central Authority in this case was so satisfied. The Central Authority then makes application to the Court seeking an order (Regulation 25) and the Court thus acquires jurisdiction.
Regulation 25A (1) enables the Court to make an order of the kind mentioned in the Regulation or to make any other the Court considers appropriate to give effect to the Convention.
Section 25A (2) circumscribes matters to which the Court must have regard and s 25A (3) provides further discretion to the Court in making orders.
Thus, there can be no doubt that the Court has jurisdiction to make the orders sought by the Central Authority. The only question for the Court is what circumstances circumscribe the power to make the orders.
In our view the intention of the Regulations and the Convention is that where properly requested the Central Authority may apply to the Court for an order which, relevantly, establishes access rights. There is no limitation upon the rights of access requiring to have been established prior to the child leaving the country in which the rights of access arise.
Indeed, in cases where a right of access does not arise until an order is obtained, but due to the removal of the child from that jurisdiction the left behind parent is unable to obtain an order prior to removal, on the argument of the mother, the Convention would not assist the left behind parent in securing the effective access of rights of access to a child in a country to which that child had been removed.
In our view this is the purpose of the Convention as a whole especially having regard to Article 1B which ensures that rights of custody and of access under the law of one Contracting State are effectively respected in another Contracting State.
Counsel for the mother conceded that if the Court was against him on this argument, the appeal must succeed. That must, then, be the result.
Breach of Rights of Access
The remaining argument on behalf of the mother was that the decision of her Honour should be upheld because even if the father had rights of access established and those rights have arisen in South Africa after the child had left South Africa and become habitually resident in Australia then nevertheless Regulation 24 (1)(a)(ii) requires that those rights have been breached and that the Central Authority had not proved a breach.
The Respondent did not address this issue in written submissions but addressed it in oral argument before the Court. Counsel for the Central Authority explained the argument in this way (Transcript 21 September 2011, page 14, lines 46-47 and page 15, lines 1-44):
In the summary of argument that was previously before court before Stevenson J there were no submissions in regard to the question of breach but when the matter was argued on 21 June the respondent’s solicitor did raise this issue. He argued that the removal of the children from South Africa by the respondent could not constitute a breach of access because no such rights of access existed at that time. I argued the contrary. I was clearly wrong. He could not have breached any access orders at that time or access rights because there were none. It is also conceded that it’s correct where it is stated in the respondent’s submissions that if there has now been a breach of the father’s rights of access these breaches must have accrued after the establishment of the rights of access.
But it appears to be the contention of the respondent that it’s outside the scope of article 4 of the Convention to consider current breaches as the contention appears to be that the breach must have occurred while the children were last habitually resident in South Africa, being the other contracting State. Now, I’ve already addressed the court on what we say is the correct interpretation of article 4 and it is submitted that the respondent’s contention in this regard is misconstrued. What we submit is that what is required is that there has been a breach of the father’s rights of access subsequent to (1) the orders having been made by the High Court of South Africa in January 2007 and/or the coming into force on 1 July 2007 of the Children’s Act in South Africa.
As submitted at pages 9 and 10 of our submissions on one interpretation of the regulations all that is necessary is that there be a claim that there has been a breach of rights of access and there had indeed been such a claim. But in any event it is submitted that there have been breaches, clear breaches, of the access rights, the one being the defiance by the respondent of the orders obtained in the High Court of South Africa. Their full custody and control of the children was awarded to the father. The respondent has not obeyed those orders, has not reacted to those orders, has, in my submission, constructively breached those orders and those orders must be expressed as full custody and control incorporate rights of access. But, secondly, and very importantly, in the application that was filed by the appellant in this matter it is stated at appeal book 21, one will find it, that a formal request was made by the appellant on behalf of the father to have contact with the children. That was simply ignored by the mother. That was a situation where the central authority from South Africa asked for help.
The central authority in Australia did, as it was obliged to – didn’t have to immediately bring an application to court but try to organise, establish, secure the exercise of the rights of access. Did so. Contacted the mother and the mother simply ignored this communication and the submission is that that must also constitute a breach. Simply stonewalling the department means that it was quite impossible for the father then to exercise the rights of access which he had. I submit perhaps with less confidence that the respondent’s conduct generally in effectively making it impossible for the father to have access to the children constitutes a constructive and continuing breach of the father’s rights of access.
Counsel for the mother responded in the following way (Transcript 21 September 2011, page 25, lines 15-30):
Your Honour, if I might now just turn to the issue raised by my learned friend about whether there has been a breach of those rights. In my respectful submission a defiance, an alleged defiance of my client of the South African High Court order relating to control and custody is not a breach of an access right because that is not an order that is directed to access. Secondly in my respectful submission because there had been some correspondence which is said to be ignored by my client before the form 4 application was made, that can’t, in my respectful submission, be said to be a breach of the rights of access when it is an issue whether or not those rights of access do exist in terms of‑ ‑ ‑
When the Chief Justice said “[l]eave aside the question of whether they exist because you are now addressing us about whether there has been a breach”, counsel responded:
Your Honour, in some ways it’s putting the cart before the horse. My client’s position is that those rights of access don’t (sic) to her in Australia. It can’t be said because they – and she takes that stance that there is a breach.
After further discussion between the bench and counsel, counsel for the mother said (Transcript 21 September 2011, page 26, lines 6-12):
Your Honour, I don’t think the evidence goes any further than to say that there was a non-response to that request and whether or not that can then be said to be that that is constructively a breach is, in my respectful submission, a very long bow to draw in these circumstances. The formal request of course was by way of the form 4 application to the court and of course ultimately points with respect to jurisdiction were raised.
In our view, in a situation where, by operation of law the father has rights of access, sought through correspondence to exercise them and was ignored, it is reasonable for the father to claim that his rights to access have been breached giving rise to the obligations on the Central Authority in Regulation 24. We note that the mother’s refusal to engage on the question of access was unconditional.
Appeal Grounds 1, 2, 4 and 8
The Appellant submitted that her Honour was wrong in finding the father had no rights of access to the children in South Africa as a result of the Children’s Act.
It is not clear to us why her Honour concluded that s 21(1) of the Children’s Act only gave the father the right to seek access (Reasons for Judgment, paragraph 13). In our view there is nothing in the Children’s Act that requires any further step to be taken and the section states in terms that the biological father of the child who meets the requirements of the section “acquires full parental responsibilities and rights in respect of the child”. Section 18 of the Children’s Act provides that those rights include “a right to maintain contact with the child”.
As such, we do not think her Honour is correct in her analysis that the Act provided a mere legal right to seek orders for access. The Children’s Act is not so constrained. That view is consistent with the general observation made by Watt J in State Central Authority (Secretary of the Department of Human Services) & Du Preez [2006] FamCA 1083 at [11] with which we agree.
Furthermore, it is well accepted that parental responsibilities and rights, which in this case includes the right to maintain contact with the child, are derived by operation of law and do not require any further order or agreement. In our view it is clear that s 18 provided, by operation of law, a right to maintain contact with the child which is, accordingly, a “right of access”.
Appeal Grounds 1, 3 and 8
Finally, although it does not require determination as we have already determined that the appeal must succeed, the Appellant contends that her Honour erred in failing to find that the order awarding the father the “control and custody of his two minor children” was sufficient to satisfy the Court that there were rights of access, the fact of control and custody incorporating a right to access.
Her Honour did not deal with this at all in her judgment, although she did consider whether there was an agreement between the parents which came within the Children’s Act, ultimately holding that the documents tendered did not constitute an agreement.
Counsel for the mother dealt with this matter only briefly in written submissions, arguing that the relevant order was made more than a year after the children ceased to be habitually resident in South Africa and that no specific mention was made of access rights.
While acknowledging that we did not have full argument on the point, an order awarding the father “control and custody of his two minor children” would appear on its face sufficient to satisfy the Court that implicit in that were rights of access. Although not necessary for the determination of this appeal it appears to us that this order could have also founded a basis on which the father’s rights to access could be established.
For those reasons we consider that the appeal must be allowed and the matter remitted to another judge in the Sydney Registry of the Court for determination of the Central Authority’s application.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman and Murphy JJ) delivered on 19 March 2012.
Legal Associate:
Date: 19 March 2012
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