Director-General, Department of Human Services and Raddison

[2011] FamCA 612

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES  & RADDISON [2011] FamCA 612

FAMILY LAW – HAGUE CONVENTION – application dismissed for lack of jurisdiction

1st APPLICANT: Director-General
Department of Human Services

RESPONDENT: Ms Raddison

FILE NUMBER: SYC 4975 of 2007

DATE DELIVERED: 29 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 14 December 2010
21 February 2011,
2 May 2011,  21 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: NSW Crown-Solicitors Office

SOLICITOR FOR THE RESPONDENT: Mr Le
Le Vaccaro Lawyers

Orders

1. That the application filed on 24 November 2010 is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4975 of 2007

Director-General, Department of Human Services

Applicant

And

Ms Raddison

Respondent

REASONS FOR JUDGMENT

the proceedings

1. On 24 November 2010 the Director-General, Department of Human 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”).  The requesting person was the father of the children K born in March 2000 (11) and T born in October 2003 (7).  The application sought that the father have indirect access to the children by way of telephone calls, skype, gifts, exchange of photographs and information and face-to-face time in South Africa at least once per year.  Ultimately, the application was varied so as to provide that the father have face-to-face access with the children only in Australia.

2. The respondent to the application was the mother of the children, Ms Raddison.  She filed no material but was granted leave to rely on an answer and affidavits which she had filed previously in response to an application in 2007 for the return of the children to South Africa.  This application failed, as the father was found to have no “rights of custody”. 

3. I allowed two adjournments to enable the mother to arrange legal representation.  Ultimately Mr Le, solicitor, appeared and assured me that he would conduct the hearing regardless of whether the mother obtained a grant of legal aid.  Mr Le honoured his promise and appeared at the hearing on 21 June 2011.

4. On that day, Mr Le raised an issue as to the court’s jurisdiction to entertain the application.  He submitted that the father had no “rights of access” for the purposes of the Regulations, with the result that the application must fail.

Background

1. The father was born in South Africa in 1962 and is now 49 years old.  He is habitually resident in South Africa.  The mother was born in South Africa in 1963 and is now 48 years old.  She and the children are habitually resident in Australia. 

2. The parents met in about 1996 in South Africa.  The nature and circumstances of their relationship were in dispute in the previous proceedings.  Significantly, however, it seemed to be common ground that they ceased to occupy the same residence in July 2005. 

3. On 27 December 2005 the mother brought the children to Australia, without the knowledge or consent of the father.  On 23 January 2007 he obtained from the High Court of South Africa an order:  “declaring that the control and custody of his two minor children [K] (born [in] March 2000) and [T] (born [in] October 2003) be awarded to the applicant pending an investigation and recommendation by the family advocate”. 

Jurisdiction

1. Regulation 24 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.

   (2)       The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention.

   (3)A notice under subregulation (2) must:

   (a)be sent to the Central Authority that sent the request; and

   (b)       include the reason for the refusal.

   (4)       For subregulation (1), the action taken may include any of the following:

   (a)       transferring the request to a State Central Authority;

   (b)       applying to a court under regulation 25 for an order that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the request relates;

   (c)       seeking an amicable resolution in relation to the rights of access to the child.

2. Regulation 25 provides:

   (1)The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders:

   (a)an order specifying with whom a child is to spend time or communicate;

   (b)an order for the issue of a warrant mentioned in regulation 31;

   (c)any other order that the responsible Central Authority considers appropriate to give effect to the Convention.

   (2)       If a copy of an application made under subregulation (1) is served on a person;

   (a)      the person must file an answer, or an answer and a cross-explanation, in accordance with Form 4A; and

   (b)      the responsible Central Authority may file a reply in accordance with Form 4B.

3. In these and the previous proceedings the Central Authority alleged that there was an agreement between the parents for the father to have access to the children.  It was contended that the agreement was reached in South Africa in September 2005 and consisted, in part, of a letter dated 7 September 2005 from the mother’s solicitor to the father’s lawyer.  This letter set out a proposal to resolve all issues between the parents, including arrangements for the father to have access to the children. 

4. The question of whether there was an agreement between the parties with legal effect was determined in the 2007 proceedings by Le Poer Trench J who held:

   “If I assume the father had entered into an agreement with the mother regarding access the question arises whether this had legal effect under South African law.  From my reading of South African textbooks and case law it appears that if the father wished to enforce this agreement he would have to apply to the courts for parenting orders.  However, the courts do not look to whether the agreement was legally binding; the tests they must apply when making orders is the best interests of the child.  Therefore an unmarried father entering into an agreement under South African law would not be able to enforce the terms as entered into without an enquiry into whether it was in the best interests of the child and then an order made providing for access by the father for the children.  Thus any such agreement would not have legal effect.”

5. The Children’s Act 38 of 2005 came into force in South Africa on 1 July 2007.  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.

6. The Children’s Act thus provided to the father a legal right to seek orders for access to the children in the courts of South Africa.  There was no evidence that he ever did so.

7. The Children’s Act also allows for parents of ex-nuptial children to enter into “Parental responsibility and rights agreements” which would have legal effect, subject to certain formalities.   Section 22 of this Act provides:

   22.(1) Subject to subsection (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with-

   (a) the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or

   (b) any other person having an interest in the care, well-being and development of the child

   (2)      The mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person contemplated in subsection (1) those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.

   (3)      A parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars.

   (4)      Subject to subsection (6), a parental responsibilities and rights agreement takes effect only if

   (a)      registered with the family advocate; or

   (b)      made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement.

   (5)      Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.

8. There was no evidence, and in fact no suggestion, that any agreement between the parents complied with these prerequisites and thus acquired legal effect.  Accordingly, the father had no rights of access in South Africa pursuant to a court order or an agreement with legal effect.

9. It seems to me that the Full Court authority of Police Commissioner of South Australia and Castell (1997) FLC 92-752 is fatal to the present application. Their Honours Ellis, Baker and Lindenmayer JJ held:

   “In our view, the rights of access referred to in the Regulation 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…Such an interpretation is, in our view, consistent with the provisions of Article 4 of the Convention that the Convention shall apply to any child who is habitually resident in a contracting state immediately for any breach of custody or access rights.

   …where 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 Regulation 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.

   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 Regulation 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 Regulation 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.”

10. The father has no rights of access either in South Africa, Australia or any other Convention country.  The application of the Central Authority sought to create such rights.  I am thus of the view that the court lacks jurisdiction to entertain the application.

11. Although the application will be dismissed, I would urge the parents to reach an agreement for the children to communicate and spend time with the father.  It is clear from the report of Family Consultant Ms D that they, particularly K, are curious about him and want to have a father figure in their lives.  The Family Report stated, inter alia:

    “11.  [K] said that she would like to see her father in Australia, both with her sister and on her own.  She is keen to have phone and e-mail contact with him (and Skype although she said that they do not have that at home) and for him to have photos of her and school reports etc.  She added ‘I do love him no matter what’.

    12.       When she relaxed into talking freely about the possibility of seeing her father, [K] became animated emotionally and expressed a flurry of feelings.  She spoke passionately about how much she longs for a ‘dad’ and wishes ‘he’ was her ‘dad’ (meaning she wishes he would fulfil the role of father in her life).  She pondered about whether he really cares about her.  She expressed a lot of curiosity about him – his name and how to pronounce it properly, how old he is, when is his birthday etc.  She asked if I had his phone number and said she is ‘dying to talk to him’.

    13.       While she expressed a desire to be able to make her own decision for herself about seeing her father, [K] acknowledged that the judge would make the decision.  She hopes it will be the ‘right’ one.  She was not sure what her sister would decide for herself as they do not discuss the issue with each other but when the two were seen together at the conclusion of interviews and were told that they have the same wish to see their father, both were pleased.

    14.       [T] would like to see her father in Australia.  She thinks that would be ‘quite fun’ and said that she does miss him ‘a little’.  Given her age when she saw him last and the limited time she has spent with him in her life, it seemed likely that [T’s] missing is more for a father figure than the actual person who is her biological father.  She said ‘I’ve never had a real dad what my Mum’s married to’”.

12. It would be a very simple matter for the parents to enter into consent orders pursuant to the Family Law Act.  I would suggest that they give careful consideration to doing so.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 29 July 2011.

Associate:     

Date:              29 July 2011