Director-General Dept of Community Services (Central Authority) & S.H.R

[2001] FamCA 926

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT SYDNEY FILE NO: SY 4047 OF 2001

BETWEEN

DIRECTOR-GENERAL

DEPT OF COMMUNITY SERVICES

(CENTRAL AUTHORITY)

AND

S. H. R (RESPONDENT MOTHER)

Dates of Hearing:	Tuesday 26 June 2001, Thursday 5 July 2001
Date of Judgment:	Friday 6 July 2001

JUDGMENT OF THE HONOURABLE JUSTICE CHISHOLM

APPEARANCES:	Mr. A.L. Hill, counsel [instructed by Mr. M. Samra, Roderick C. Best, Legal Services Unit, Dept. of Community Services, 164-174 Liverpool Road, Ashfield NSW 2131, DX 21212 Ashfield], appeared on behalf of the applicant father.
Mr. Cunningham, Solicitor [of J.L. Cunningham, Level 2, 275 George Street, Sydney NSW 2000, DX 10237 Sydney Stock Exchange], appeared on behalf of the respondent mother.

MATTER: DIRECTOR-GENERAL,

DEPT OF COMMUNITY SERVICES,
(CENTRAL AUTHORITY) v S.H.R.

CORAM: CHISHOLM J.

NUMBER: SY 4047 OF 2001

DATES OF HEARING: 26 June, 5 July 2001

DATE OF JUDGMENT: 6 July 2001

CATCHWORDS:

CHILD ABDUCTION - Evidence - whether document admissible under Family Law (Child Abduction Convention) Regulations 1986 reg 29(1)(a) - whether reg 29(1)(a) invalid because inconsistent with provisions of Evidence Act 1995 (Cth) - effect of Evidence Act 1995 s 8(2); Acts Interpretation Act 1901 (Cth), ss 15A, 15AC.

CHILD ABDUCTION - interpretation of Family Law (Child Abduction Convention) Regulations 1986 - onus of proof - application of reg 16 where court not satisfied as to habitual residence or as to whether a removal was in breach of a person's custody rights.

CHILD ABDUCTION - child removed from Italy to Australia - whether wrongful removal - whether father consented - Family Law (Child Abduction Convention) Regulations 1986

CASES:

De Lewinski v Department of Community Services (1997) 21 Fam LR 413, 428-9.

Beaumont v Yeomans (1934) 34 SR (NSW) 562, at 569.

Bird v John Sharp & Sons (1942) 66 CLR 233;

Mathieson v Burton (1971) 124 CLR 1.

Boehm v DPP [1990] VR 494, 498.

The parties married in Australia in 1997. The father was born in Italy and the mother was an Australian. They travelled to Italy after the marriage. They gave inconsistent evidence about whether they intended to live in Italy or Australia. Documentary evidence showed, consistently with the mother's evidence, that the father applied for a visa to become a permanent resident in Australia. The child was born in Italy on 8 February 1998 and was registered as an Australian citizen.

In January 1999 the mother returned to Australia, and departmental records supported her evidence that she did so "to set up while my Father waited for immigration". However although the father was granted permanent residency in March 1999, he informed the mother in June 1999 that he was not coming to Australia.

The mother returned to Italy. Her evidence was that she did so to seek an explanation from the father and to attempt to reconcile. She returned to Australia with the child on 26 July 2000. This departure was said to be the wrongful removal for the purpose of the application of the Regulations. The father alleged that she told him she was leaving for a holiday only. The mother's evidence was that she was returning to live in Australia, and that the father had consented to this.

The father initiated proceedings under the Hague Convention for the return of the child to Italy. The issues included whether the child was a habitual resident of Italy, whether the father consented to the removal, and whether the father was exercising his rights of custody.

The Central Authority sought to rely on a document written by the father's lawyer in Italy. Apart from reg 29, the admissibility of this document would have been determined under the provisions of the Evidence Act relating to hearsay. The respondent submitted that that reg 29 was invalid for inconsistency with the Evidence Act 1995, adopting the argument presented but not determined in De Lewinski v Department of Community Services (1997) 21 Fam LR 413, 428-9.

Reg 29 relevantly provided:-

29 (1) In proceedings under these Regulations in a court:
(a)an application under regulations 13, 14, 24 or 25 or any document attached to or forwarded in support of that application is admissible as evidence of the facts stated in the application or document.

The relevant provisions of s 8 of the Evidence Act 1995 (Cth) were:

8 (1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.
(2) This Act does not affect the operation of regulations that:
(a) are made under an Act other than this Act; and
(b) are in force on the commencement of this section.

However, this subsection ceases to apply to a regulation once it is amended after that commencement.

Held, dismissing the application:-

Upholding the validity of reg 29(1)(a)

Reg 29 gave effect to Article 30 of the Convention, under which any application submitted directly to the judicial authorities in accordance with the terms of the Convention, "together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible".
At the commencement of s 8 of the Evidence Act, on 18 April 1995, reg 23 gave effect to Article 30 of the Convention. It was repealed and replaced by reg 29 in October 1995. The only differences between the former reg 23(1) and the present reg 29(1)(a) related to matters of drafting and style: for practical purposes, the content was identical.
At a literal level, reg 29 was not amended in October 1995; it was created or inserted at that time. And the old reg 23 was not amended; it was repealed. Thus a literal reading did not bring reg 29(1)(a) within the last sentence of s 8(2) of the Evidence Act.
While there seemed no authority in point, decisions on the distinction between amendments and repeals emphasised the importance of substance over form.
Beaumont v Yeomans (1934) 34 SR (NSW) 562, at 569; Bird v John Sharp & Sons (1942) 66 CLR 233; Mathieson v Burton (1971) 124 CLR 1; Pearce and Geddes, Statutory Interpretation in Australia, 4^th ed 1996, ch 7, considered.
Further support for such an approach might be found in s 15AC of the Acts Interpretation Act, by which a later Act expressing the same idea in a different form for the purpose of using a clearer style should not be taken to have changed the idea.
Boehm v DPP [1990] VR 494, 498, considered.
It was appropriate to consider the intention of the legislature in enacting s 8(2) of the Evidence Act. Parliament presumably considered that any future departure from the provisions of the Evidence Act was a matter of such seriousness that it should be done by amending the relevant Act rather than by regulation; but that the existing regulations were acceptable, and it was convenient to save them.
Reference to the purpose of s 8(2) supported the validity of reg 29(1)(a). Parliament saw nothing wrong with the old reg 23, and since the new reg 29(1)(a) was substantively identical, it would not be sensible to impute to Parliament the intention that it be rendered invalid. This was particularly so since the provision so clearly implemented an important Article of the Convention.
The question was difficult and had not been extensively argued, and there was probably more to be said on both sides. However in the end, the argument for invalidity would involve form prevailing over substance. The regulation was valid.
There may be a need to resolve any uncertainty about the validity of reg 29 by an amendment to the Family Law Act 1975 (Cth) or the Evidence Act 1995.

The onus of proof and the structure of the regulations

The Regulations raised a significant issue of interpretation relating to the onus of proof of some matters, in particular whether a child was habitually resident in the convention country from which the child has been removed, and whether the removal was in breach of a person's right of custody.
Reg 16(2) did not apply in a case where the court is not satisfied as to the relevant matter, and on a literal reading 16(1) might suggest that the child must be returned where the court is not so satisfied. However having regard to the terms of the Convention, reg 16(1) should not be interpreted in a way that would allow or require the court to order a child's return when it was not satisfied that there had been a removal within the meaning of the Regulations, or that the child had been a habitual resident of the Convention country at the time of the removal.

On the facts

The father's statement that he had not applied for permanent residence was contradicted by the Departmental records and, on the balance of probabilities, was a lie.
On the evidence, the father had consented to the mother's removal of the child in order to live in Australia. Thus there was no (wrongful) "removal" within the meaning of the regulations; the father was not exercising his rights of custody at the time of the removal.
The child was a habitual resident of Australia at the time of the alleged removal. Alternatively, the court could not be satisfied that the child was a habitual resident of Italy at that time.
Had it been necessary to rely on reg 16(3), the discretion under reg 16(3)(a)(ii) would have been exercised so that there would be no order for the child's return to Italy.

REPORTABLE.

INTRODUCTION

This is an application by the Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 for the return of a child to Italy. It was filed on 5 June 2001 and is supported by an affidavit by Doreen Muirhead affirmed 22 June 2001 and filed 25 June 2001.
The child, a boy, was born on 8 February 1998 and is thus now aged three. To preserve his anonymity, I will refer to him as "Michael", though that is not his name. The applicant says that the mother wrongfully removed him from Italy on 26 July 2000 when she brought him to Australia.
The application is opposed by the respondent mother. She relies on three affidavits by herself, two affidavits by her brother Mr B, an affidavit by Ms F. H., and an affidavit by a translator of a document in Italian.
At the hearing, the father was in Italy. The mother was in court, and gave some oral evidence in chief. There was no application to cross-examine her or her witnesses.

The adjournment application

In the course of preparing the judgment, I became concerned that what I said in the course of the hearing might have led the parties to feel that they had not had a sufficient opportunity to make submissions about a legal issue, namely the validity of reg 29. I listed the matter for mention on 5 July to deal with this possibility. On that occasion Mr Hill sought an adjournment for two weeks so that the matter could be mentioned again, and a date then set for the hearing of further argument. For the respondent mother, Mr Cunningham opposed the application.
Firstly, I accept that it would be desirable for the legal issue to be explored carefully and authoritatively determined. On the other hand, the views I have formed lead to the conclusion that the question of law may not be crucial in this particular case.
Secondly, the Central Authority can be reasonably seen as having been put on notice that the validity of reg 29 could be questioned since 1997, when the argument was formulated in De Lewinski.[i] In that sense, the Central Authority cannot be seen as having been taken by surprise by the argument. Mr Hill did not suggest that there was anything in my conduct of the hearing that had prevented him from making further argument at the hearing. To grant the adjournment would delay the determination of this case, and cause distress to the mother and, perhaps, as Mr Hill pointed out, to the father.
Thirdly, as has been pointed out many times, it is important that proceedings under the Child Abduction Regulations be dealt with expeditiously.
For these reasons, in my view justice requires that the adjournment application be refused.

Exhibit CA1 and the validity of Regulation 29

Mr Hill sought to put into evidence the document that became exhibit CA1. Although I gave it an exhibit number for convenience, I reserved my position on it. It is a document by the father's lawyer making various statements about what the father did and why he did it. There are three paragraphs. Paragraphs 1 and 2 are hearsay, or express conclusions rather than stating the facts on which the conclusions are based. Paragraph 3 is a submission, not evidence, and was not pressed.
Mr Hill, however, submitted at the hearing that the exhibit was admissible because of Regulation 29(1)(a) of the Regulations. Mr Cunningham submitted that the regulation was invalid.
If the regulation were invalid, the admissibility of the exhibit would turn on the relevant provisions of the Evidence Act 1995 (Cth) and the Family Law Act 1975 (Cth).
At the mention on 5 July 2001, Mr Hill submitted that he would wish to argue that the exhibit would fall within s 63 of the Evidence Act, and that although notice had not been given under s 67, the Court could exercise its discretion to admit it.[ii]
This argument was not raised at the hearing, and Mr Cunningham has not had an opportunity to deal with it. Having regard to the conclusion I reach on other matters it is unnecessary to deal with this argument, and I express no view on it.
I proceed to deal with the issue argued at the hearing, whether the exhibit is admissible by reason of reg 29(1)(a). Although this could be the subject of extensive discussion, since the submissions were rather brief, I will try to deal with it as succinctly as I can.
Reg 29 relevantly provides:-
29 (1) In proceedings under these Regulations in a court:
(a)an application under regulations 13, 14, 24 or 25 or any document attached to or forwarded in support of that application is admissible as evidence of the facts stated in the application or document.
In my view the document falls within the words emphasised. There was no contrary submission.
However Mr Cunningham submitted that it is nevertheless inadmissible under the provisions of the Evidence Act. He said that Regulation 29(1) was invalid. He put the argument that was advanced in De Lewinski v Department of Community Services in the Full Court, but which the Full Court did not find it necessary to consider.[iii] That argument was as follows:-

“3.1The Evidence Act 1995 came into operation on 19 April 1995. It’s (sic) provision (sic) apply to all proceedings in a Federal Court: s.4(1). It binds the Crown in all capacities: s.7. It specifically provides for the manner of admissibility of evidence in Federal Courts. Every person is competent and compellable to give evidence (s.12) save for those lacking capacity in the terms of s.13. A witness must take an oath or affirmation before giving evidence: s.21(1). The only exception or exclusion is where a right exists to make an unsworn statement in criminal proceedings: s.25. The independent admissibility of documents is limited to documents which would not, per se, include the contents of an unverified application or documents forwarded in support of it: s.48. Thus the Act makes clear provision for the giving of evidence by witnesses and the independent admissibility of documents.
3.2Reg. 29(1)(a) purports to make documentation which would not otherwise be admissible under the Evidence Act admissible in a Court to which the Act applies.
3.3It is trite that where there is conflict between an Act of Parliament and a Regulation the former will prevail. Subordinate legislation is prima facie ultra vires if it is inconsistent with the substantive provisions of a parliamentary enactment: Hacking v Lee (1860) 2 E&E 906 at 911 per Crompton J. and Irving v Askew (1870) LR5 QB 208 at 211 per Hannen J.
3.4Such a provision as it stood at the commencement of the Act would have been saved: s.8(2), but that saving provision expressly excludes from it’s (sic) operation any regulation which is the subject of amendment after the commencement of the Act. The authors of Cross on Evidence, Butterworths, Looseleaf describe the effect of s.8(2) as follows (#1695):-
“Section 8(2) provides that the Act does not affect the operation of regulations that are made under an Act other than the Evidence Act and are in force on the commencement of s.8. However, s8(2) also provides that the section ceases to apply to a regulation once it is amended after the commencement of s.8”

3.5Reg. 29 was amended by Statutory Rule No. 296 of 1995 which commenced on 1 November 1995 and as a consequence was deprived of the saving protection of s. 8.
3.6Without the content of the application being admissible there would have been no evidence of matters essential to proving a basis for the application of the Convention and it then would have been appropriate for the Central Authority’s application to be summarily dismissed in accordance with the principles discussed and summarised by Nygh J. in Aldred and Aldred; Westpac Banking Corp. (1986) FLC 91-753 esp. 75,491-2.”

The question turns on s 8 of the Evidence Act 1995 (Cth). This was said to protect Regulation 29 from invalidity arising from inconsistency with the substantive provisions of the Evidence Act. There was no suggestion that Regulation was valid other than by virtue of s 8. It was common ground, I think, that unless saved by s 8 it would be invalid for inconsistency with the Evidence Act.
The relevant provisions of s 8 of the Evidence Act are:
8 (1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.
(2) This Act does not affect the operation of regulations that:
(a) are made under an Act other than this Act; and
(b) are in force on the commencement of this section.
However, this subsection ceases to apply to a regulation once it is amended after that commencement.
The section commenced on 18 April 1995. Thus the last sentence of the subsection means that the subsection "ceases to apply to a regulation once it is amended after [18 April 1995]".
I have quoted the present reg 29 above. I should say something about its history. It gives effect to Article 30 of the Convention. Under that Article, any application submitted directly to the judicial authorities in accordance with the terms of the Convention, "together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible".
On 18 April 1995, Regulation 29 did yet not exist. It was one of a set of provisions added in October 1996. However the former reg 23(1), in force at 18 April 1995, was in almost identical terms to what is now reg 29(1)(a).
There appear to be two differences between the former reg 23(1) and the present reg 29(1)((a). The former regulation used the words (emphasis added) "an application… and any document or documents… are admissible…" The present reg 29(1)(a) uses the words "an application… or any document…is admissible". I am not sure that the change is an improvement, since the reader of the present formulation might wonder whether the "or" is intended disjunctively. But I cannot imagine that this was intended - it would lead to absurdity. I assume that the difference in wording was intended to make the ideas clearer, or more grammatically correct, or something of the sort, rather than to change the meaning.[iv]
The second difference is that reg 29(1)(a) includes proceedings under reg 25 as well as proceedings under regs 13, 14 and 24, whereas the former reg 23(1) did not refer to proceedings under reg 25. But again this does not seem to be a matter of substance. It arises from re-numbering of the provision for applications relating to access.
Thus in my view the only differences between the former reg 23(1) and the present reg 29(1)(a) relate to matters of drafting and style: for practical purposes, the content is identical.

I now turn to the issues of interpretation, which are surprisingly difficult. Firstly, does the present reg 29(1)(a) fall within the words "regulations that… are in force on the commencement of this section"? This precise argument was not expressly raised by Mr Cunningham or the argument in De Lewinski, but the issue is so central to the interpretation of s 8 that I think I should say something about it.
Although there were Child Abduction regulations on 18 April 1995, they have since been amended in various ways, and reg 29 did not exist in April 1995. Literally, it was not in force at the relevant time. If so, then on a literal approach it does not fall within the protection of s 8(2), quite apart from the last sentence of that subsection.
On the other hand, if one concentrates on substance and not form, one might say that reg 29(1)(a) was in force in 1995, despite the fact that it - the substance of it - happened at that time to be in a regulation with a different number, namely 23. For reasons that will appear, I think this is the better view.
The argument stated in De Lewinski is not that reg 29(1)(a) falls outside the above quoted words, but that it was amended, and is thus excluded by the last sentence of s 8. However I am not sure that this is correct. The argument in De Lewinski assumes that an amendment in this context would include the deletion of a provision and its replacement by a differently numbered equivalent provision. At a literal level, reg 29 was not amended in October 1995; it was created or inserted at that time. And the old reg 23 was not amended; it was repealed. Thus I do not think that a literal reading brings reg 29(1)(a) within the last sentence of s 8(2) of the Evidence Act.
An approach that concentrates on substance reaches the same result. If one disregards the re-numbering, and the stylistic change, again it is arguable that there was no amendment within the meaning of the term in s 8(2), since there is no substantive change.
I know of no authority directly in point. However in determining whether a provision is a repeal or an amendment, the authorities indicate that regard should be had to substance rather than form.[v] These authorities suggest that a similar approach might be appropriate to the present problem. Further support for such an approach might be found in s 15AC of the Acts Interpretation Act, by which a later Act expressing the same idea in a different form for the purpose of using a clearer style should not be taken to have changed the idea.[vi] Although this provision is not directly applicable, perhaps it does support the idea that in these matters substance is what counts. On this view, focusing on substance, the answer would be that there has been no amendment.
I consider whether the purpose of the provision casts any light on these issues.[vii] I was not referred to any relevant history of the provision. However the general intention of s 8(2) seems clear. Parliament presumably considered that any future departure from the provisions of the Evidence Act was a matter of such seriousness that it should be done by amending the relevant Act rather than by regulation; but that the existing regulations were acceptable, and it was convenient to save them. Saving them would have the advantage of avoiding possible arguments about whether particular regulations might be inconsistent with the Evidence Act.
If this is the indeed the rationale, what conclusions follow? I think it supports the validity of reg 29(1)(a). Parliament saw nothing wrong with the old reg 23, and since the new reg 29(1)(a) is substantively identical, it would not be sensible to impute to Parliament the intention that it be rendered invalid. This is particularly so since the provision so clearly implements an important Article of the Convention. The contrary position, I suppose, might be that Parliament should be taken to have wished to avoid all arguments about what is substantial and what is not, and simply have provided that any change, even of a cosmetic nature, would take the regulation outside the protection of s 8.
In my view the question is difficult and there is probably more to be said on both sides. However although the matter has not been extensively argued before me, I think it necessary to form a view on it. In the end, the argument for invalidity would involve form prevailing over substance. I conclude that the regulation is valid.
I should add that although no submission was made about this, I have considered whether s reg 29 could be saved by s 8(1) itself. I think the answer is clearly in the negative. Any argument that s 8(1) preserved regulations made under an Act of Parliament could not be sustained, because s 8 clearly distinguishes between acts and regulations.[viii] To treat subsection (1) as saving the regulations would deprive the qualifications in sub-section (2) of any effect.
I imagine that the validity of reg 29 is important to the conduct of proceedings under the Convention, and of course the Convention is of public importance to Australia. I assume that many of the documents relied on by the Central Authority in proceedings under the Convention depend on reg 29 for their admissibility. There may be a need to resolve any uncertainty by an amendment to the Family Law Act 1975 (Cth) or the Evidence Act 1995.

Issues of evidence and credit

In accordance with the normal approach to these matters,[ix] there was no cross-examination. Mr Hill, for the Central Authority, made no application to cross-examine the mother or any of her witnesses.
On a number of significant matters, the evidence of the parties is in conflict. Put very briefly, the mother's evidence is that the parties always intended to make Australia their home, and the father's evidence is that they always intended to make Italy their home.
The absence of cross-examination often makes it difficult to determine which of two competing accounts should be accepted. In Hague cases, where one party is often overseas and the proceedings are speedy, the problem can be particularly difficult. In Regino and Regino (1995) Lindenmayer J said:[x]
“The resolution of the crucial factual issue in this case, which I have earlier identified, essentially involves a determination by me of the relative credibility of the parties’ conflicting accounts of the events… particularly of their differing accounts of what the mother then informed the father about her intentions as regards her future residence.
Before attempting that resolution, it is appropriate to acknowledge that it is particularly difficult for any court to resolve contested issues of fact on the basis of affidavit evidence only where the court does not have the opportunity, which the taking of viva voce evidence provides, of seeing and hearing the witnesses give their evidence and thus being able to assess their credibility in the light of their demeanour and general consistency, particularly when subjected to a searching cross-examination in the forensic context. Nevertheless, in a case such as this, where, by the very nature of the proceedings, one of the parties resides overseas, and it is therefore impracticable to secure his or her attendance before the court to give oral testimony, the court must necessarily undertake that difficult task and do the best it can to resolve the factual issues upon the material which is before it. In doing so, I believe that the court must be cautious not to unfairly disadvantage the absent party by presumptively giving greater credit to the testimony of the other party who happens to be within the jurisdiction and before the court.”
In Re F (A Minor)(Child Abduction)[xi] Lady Justice Butler-Sloss dealt with the problem of there being irreconcilable issues exposed in the affidavits in Convention cases. She said:
“If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.”
Bearing in mind these remarks, I turn to this case. In his statement of 16 June 2001, the father says in the early paragraphs that he was never informed about the mother's real intentions.[xii] She "always said" she would go to Australia just for a month's holiday, and never told him she would go to Australia permanently. He has always considered Italy as his permanent home. The statement continues:-
4. I deny having filed a petition to be granted a permanent residence in Australia.
As Mr Cunningham submitted, this must be a lie. I so find on the balance of probabilities. In fact, the father had made precisely that application, and the records are in evidence. I refer to them later.
This matter goes to the heart of the case. Appropriately, Mr Hill did not attempt to quibble about the word "petition". The evidence shows, in my view, that the father is prepared to lie to obtain advantage in the proceedings. To adopt the term used by Lady Justice Butler-Sloss, it is "compelling".
Other matters pale into insignificance beside this. However I should say briefly that in general I thought the mother's evidence was plausible and consistent with other evidence, particularly the independent documentary evidence. By contrast, even making appropriate allowance for difficulties arising from his absence and English not being his first language, the father's account of the facts is sketchy and selective. Apart from the particular lie that I have identified, the picture he paints is difficult or impossible to reconcile with other documents in the Departmental file to which I have referred. It is also difficult or impossible to reconcile with some of the terms of the agreement that he himself proposed in November 2000.
Despite the lack of cross-examination, in the unusual circumstances of this case I have grave doubts about the trustworthiness of the father's evidence and I would not be prepared to make a finding on significant matters relying on his uncorroborated evidence. I do not, of course, assume that because the father’s evidence is not to be trusted, everything the mother says must be correct.

THE FACTS

The parties married on 19 April 1997 in Sydney. The father was born in Italy and worked as a hairdresser. The mother is an Australian.
After the marriage, on 29 July 1997, the parties travelled to Italy. (They remained there until January 1999, when the mother and the child returned to Australia.) The mother was then pregnant.
The parties give contradictory evidence as to their intentions at that time. The mother says they went in order to clear up the father's financial affairs and so that he could obtain permanent residence in Australia.[xiii] It seems from the father's evidence[xiv] that he says that so far as he was concerned the parties intended to live permanently in Italy.[xv] He specifically denies having sought permanent residence in Australia.
The mother says that prior to the departure for Italy she and the father sought and obtained character material to support an application by the father for Australian citizenship. She says that by about March 1997 the father had commenced "the procedure in Italy of obtaining Australian citizenship".[xvi]
Records from the Department of Immigration and Multicultural Affairs ("the Department")[xvii] provide support for the mother's evidence, at least in a general way. First, they indicate that the father had an x-ray on 18 June 1997, and applied to undergo a medical examination. The date of the application appears to be 24 June 1997, and that is certainly the date of the examination. In that application, in the item for "proposed duration of stay in Australia", "permanent" is ticked, rather that "temporary". These documents indicate, consistently with the mother's evidence, that by June 1997 the father was taking preliminary steps towards living in Australia on a permanent basis.
For the Central Authority, Mr Hill submitted that the mother gives no details about the resolution of these financial affairs, such as the sale of a business. He noted that she stayed in Italy a long time, and there is no evidence of what was being done. I agree that these matters are not dealt with in the mother’s evidence. However the gaps in her evidence are much less than the gaps in the evidence of the father, and, unlike his, her evidence does not contradict any independent documentary records.
Mr Hill also submitted that the purchase of a house and the parties' joint lives there as father and mother indicated that the mother had a desire to live in Italy, and were factors inconsistent with her evidence. However as to the house, the mother’s evidence is that the father’s father provided part of the money for it and that the father had told her it was an investment property and they could rent it when they moved to Australia.[xviii] There is in fact very little in the way of evidence about the circumstances of the parties in Italy, although the mother says that she admits that they were living under the same roof but denies “that the family was living together”.[xix] Thus I do not think the evidence permits me to attach much weight to these factors. Further - although in these proceedings I do not regard this as in itself decisive,[xx] it is of some relevance that the Central Authority made no application to cross-examine the mother.
In all the circumstances, I accept the mother's evidence, and find that at this time the parties proposed to live permanently in Australia after attending to various tasks in Italy.
The child was born on 8 February 1998, in Italy. In about May 1998 the parties collected various documents from the Department of Immigration. On 16 September 1998 the child was registered as an Australian citizen in the Australian Embassy in Rome. The father as well as the mother signed documents in connection with this.
The mother says that in January 1999 she and the child returned to Australia permanently, "to set up while my Father waited for immigration".[xxi] Her oral evidence was that the father said to her that she and the child should go back to Australia, get set up there financially, and that she should get a job and support the child; he would arrive when "the immigration comes through". The father does not give specific evidence about this period, but as I have mentioned his evidence seems to be that at all times he intended that the family should live in Italy.
Again, the departmental records support the mother's version. The father completed a Form 47 Application for Migration to Australia. The date is difficult to read, but appears to be 9 February 1999. The date of the "signature of spouse" is stated as 20 December 1998.
That document contains some relevant statements. The father's home address in Italy is specified. To the question "Does your spouse live at the same address as you?", the answer is:
Until January 1999 when she will be at her home address in Australia with her parents, at [address given].
The Application identifies the child, and gives the following answer to the question "Are all these children migrating with you?":
He will already be living in Australia with my mother, from Jan 1999.
The application was successful. A letter was written to the father at his address in Italy on 29 March 1999 advising him so. The visa permitted unlimited stay in Australia; the only condition was that the father should arrive in Australia by 18 July 1999. The letter informed him that as a permanent resident, subject to certain conditions he could apply for Australian citizenship.
I note Mr Hill's submissions to the effect that the father's application simply gave him the right to come to Australia if he wished to do so. But in my view the objective evidence supports the mother's evidence that during this period they intended that the father should migrate to Australia and live here permanently with the mother and the child, and I accept this evidence.
However, the father did not come to Australia. According to the mother, in June 1999 the father told her "I am not coming". She says that from January to June 1999 he had become less interested in the child and had provided no financial support for him. She also says that, "During this time he cleared his interest in pursuing his Australian citizenship". I think in this sentence "cleared" must be a slip, the intended word being perhaps "ceased" or something similar.
Shortly afterwards, it seems, the mother and the child returned to Italy. They stayed for one year.
Mr Hill submitted that even if there had previously been a desire to live in Australia, it was “inescapable” that in this period the child’s habitual residence was in Italy. He said the mother knew there was no chance that the father would come to live in Australia. She was not in Italy for a holiday. She had gone back to the house, and taken up habitual residence there.
There is very little in the way of evidence from the father about this period. He gives no details of conversations or other evidence that would support Mr Hill’s submission apart from very general statements, of the kind I have previously mentioned, about living in Italy. On the other hand the mother’s evidence is somewhat more detailed and requires careful attention.
The mother's evidence is that she went there to seek an explanation for the father's change of heart, and stayed there for one year "in an attempt to reconcile". She says that the father spent little time with her or the child, and that it was obvious that he had no interest in any reconciliation. In December 1999, she told him:
We are unhappy together and can't fix it any more. I am sick, I think I should return to Australia with Michael.
After some discussion, there was this conversation in January 2000:
Father: Yes, good, go. But remember that you have to pay for yourself and Michael once you leave Italy. I am not financially responsible for you guys outside Italy.
Mother: Yes, that is fine. Of course I agree to that. Money is not really the issue.
The mother then said that there were further conversations. Her oral evidence was that the conversation was thus:
Father: You and Michael go back to Australia. Our marriage is over.
Mother:I will leave with Michael.
Father:We will keep in touch, you go early.
Mr B was staying with them at the time. He had joined them in June 2000. He says that he heard conversations between the parties about the mother and child returning to Australia. In particular, he heard the father say:
When you go back to Australia you will get a job. That way you can look after yourself. I will not be financially responsible for you or Michael.
You and Michael should go back to Australia to live.
When you go back to Australia, we will keep in touch.
At one point he heard this conversation:-
Mother: What do you think about me going back to Australia?
FatherWell, it has to be done.
The day they left the father's residence in Italy, Mr B was there when the mother said goodbye to the father's assistant. The mother was upset in saying goodbye, and at that time the father said:
You're not coming back.
The mother and the child left Italy for Australia on 26 July 2000. It is this departure that is said to be the wrongful removal. The father's evidence is that he believed that the mother was going only for a month, for a holiday.[xxii]

There is considerable evidence about the circumstances of the departure. In brief, the mother's brother Mr B came to Italy to assist. The mother bought a one way ticket. Mr B and the father assisted with luggage and transport. Mr B went on a separate plane, because he had a return ticket and there were difficulties in obtaining the same plane. Mr B says that it was difficult for the mother to travel with a pram and baby luggage along with the considerable amount of luggage that she was bringing back. The father drove them to the airport. Because there was so much luggage, the car was overloaded. Mr B was present when the mother checked in the luggage and she and the child received their seat allocations. He did not hear the father ask when she would be returning.
There is a dispute about the significance of the one way ticket. The mother says it indicates that she was going for good, and that the father knew this. The father says that it was purchased for a different reason, namely to avoid the risk that the return part might be lost. He points out that on a previous occasion this happened when the mother had come to Italy in June 1999.[xxiii] The mother explains this: on that occasion, the father had been willing to pay for a single ticket only.[xxiv] And she says that it would be uneconomical to buy a single ticket if, as the father said, the intention was to be away only for a month or so. She says, and I accept, that one way tickets for each trip are more expensive than return tickets.[xxv] In my view the one way ticket provides strong support for the mother's version of events, though it is not conclusive.
Mr Hill directed my attention to some aspects of the evidence that he submitted supported the father’s position. He referred to paragraph 14 of the father’s statement, to the effect that “all the child’s personal belongings such as clothes, toys, etc were left in his residential home in Italy”. Firstly, I do not accept that this is literally true, and prefer, for example, the evidence of Mr B that it was difficult for the mother to travel with a pram and baby luggage.[xxvi] It may well be true that some of the child’s things were left behind: there is evidence that the mother had difficulty coping with all her baggage. While this is relevant, I do not regard it as casting serious doubt on the mother’s version of events.
Next, Mr Hill relies on evidence by the father to the effect that teachers at the school where the mother had been teaching English inquired about her “since she had undertook some job engagements she was failing to maintain due to her sudden departure for Australia. These people were also expecting she would come back.”[xxvii] It is true that the mother does not deal with this allegation in her evidence. However, assuming it is accurate, although it is relevant and consistent with the father’s version I do not think it is necessarily inconsistent with the mother’s version.
Mr Hill submitted that if one considered together the evidence relating to the house, the leaving behind of the child’s things, and the teachers expecting the mother to return, the conclusion should be that these objective facts undermine the mother’s case. However for the reasons given, while they are relevant and if the father is to be believed they provide some support for his case, in my view they are outweighed by the evidence led by the mother, to which I have sufficiently referred.
During the next few months there may have been discussions or negotiations between the parties, but there is no real evidence about this. In September 2000 the mother sent a form of consent orders to the father. He did not agree to them. I think the only relevance of this document is that it shows that the mother was agreeable to the father having contact with Michael. There are some inconsistencies on matters of factual detail between this document and the mother’s evidence, but they do not seem significant and Mr Hill went no further than drawing attention to them, saying, in effect, that he would not engage in “nit-picking”. I do not think he invited me to draw any adverse inferences from them, and I do not do so.
On about 8 November 2000 the father sent a document to the mother. It is dated 7 November 2000. A translation of it is in evidence. It appears to be a counter-proposal by the father. It is headed "Conditions of separation by mutual consent" and is expressed to be between the parties.
After the words "It being acknowledged", it sets out a brief history. Part of the history is that the mother "left the matrimonial home in Italy to return to her country of origin together with her son Michael". It says that having regard to these things "it seems appropriate for the spouses to separate in order not to exacerbate the existing relationship as well as for the welfare of their son Michael."
The document goes on to deal with questions of contact and support of Michael. These passages are important and need to be quoted:-
"For all these reasons separation by mutual consent is granted on the following CONDITIONS:
The parties will live separately and apart under the obligation of mutual respect and free to choose where they want to live;
The Italian matrimonial home situated [address specified], is awarded exclusively to [the father];
Their son Michael is awarded to the mother with whom he is going to live in Australia. The mother undertakes to inform the father of any changes of address;
The father may travel to Australia to visit his son at any time of the year, providing he informs the mother at least 15 days in advance; he is also allowed to have the said child in Italy in his company at least once a year and for a continuous period of approximately one month to be agreed with the mother according to the needs of the child (eg., during school holidays). This aims at ensuring the presence of the father figure, fundamental to the healthy psychological development of the child. The father will maintain and be responsible in every way for the child during the periods he has him in his company.
The parties declare to be self-sufficient and that they will provide independently for his or her own maintenance.
The mother will be responsible for the maintenance, the care and everyday decisions regarding her child Michael while he is with her in Australia. Extraordinary decisions, such as medical treatments, educational choices, etc., must instead be made with the father’s consent.
All that being stated, the spouse declare to have settled all controversial issues and to be mutually satisfied."
Mr Cunningham pointed out that the document does not mention any complaint by the father about the mother's departure, in particular that it was wrongful or that she deceived him by pretending she was going on a holiday. This is not conclusive against the father, however, because recriminations might properly be omitted from such a document.
More importantly, however, the document contains proposals by the father that are essentially that he have contact with the child, and involvement in "extraordinary decisions", as distinct from everyday ones. Otherwise, Michael "is awarded to the mother with whom he is going to live in Australia". In this respect, the document is consistent with the mother’s version of events.
It seems to me that this document indicates clearly that at 7 November 2000 the father sought no more than what was contained in the document in relation to Michael. At that time, in my view, he acquiesced in the mother having what was in substance the custody of Michael, and living with him permanently in Australia. There is no evidence from him of any change of mind between July 2000 and November 2000.
It is necessary to consider Exhibit CA1 in this context. It is a letter from the father's lawyer in Italy. The only aspect of it relied on by Mr Hill is the second paragraph, in which the lawyer wrote that in order to avoid an aggravated situation the father "proposed his mother a separation agreement to be filed to (sic) an Italian court."
With respect to Mr Hill, I do not think this takes the matter very far. There is no evidence from the father that the filing of the document in an Italian court was a condition on which he consented to the mother leaving, or anything of that sort. Indeed, there is no evidence that he wanted any document filed in an Italian court prior to his sending this document, in November 2000, months after the mother had left. I take into account that at that time the father wished to have his separation agreement filed in an Italian court, but I do not think that fact is of much relevance.
Taking into account all the evidence, I find that the father consented in July 2000 to the mother's coming to Australia to live here permanently with the child. Contrary to his evidence, I do not believe that he thought she was coming for a holiday, or that she gave him that impression. I accept that he probably wanted to remain in touch with the child, but he did not seek to impose any conditions on the mother's leaving, nor did she agree to any such conditions. I add that there was no argument by the Central Authority that this was a case of wrongful retention as distinct from removal.
To resume the narrative, on 11 January 2001 the father initiated the Hague proceedings in Italy.
On 16 March 2001 the mother went to Italy. She says it was to try to resolve outstanding issues with the father, but that he refused to talk. Her evidence is that during this visit she was prevented from entering the former home. She said she wanted to get her remaining goods. He said:
"I knew you were not coming back, and therefore I disposed of them after you left. You've got nothing in the house of yours."
I do not think there is evidence of the date of the mother’s return to Australia, but it seems that the trip was short and that she had returned by 22 March 2001.[xxviii]
On 31 May 2001 the mother filed an application for residence and contact orders in Family Court of Australia. On 5 June 2001 the Central Authority filed the Application now before the Court.

THE GOVERNING LAW

The proceedings are governed by the Family Law (Child Abduction Convention) Regulations 1986. Those regulations were made to enable Australia to perform its obligations under the Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980.
I do not think it necessary to describe the regulations in any detail. They are well known, and have been authoritatively described more than once.[xxix] They provide for the Central Authority to bring applications such as the present, seeking the swift return of a child who has been abducted from a convention country such as Italy. I will focus on the particular matters raised in submissions. I will assume, as seems to be the case, that in all other respects the application is in accordance with the requirements of the regulations. For example, I accept that the father had rights of custody under Italian law.

THE ISSUES CONSIDERED

The onus of proof and the structure of the regulations

Although the submissions in this case were in some ways straightforward, in my view they raise a significant issue of interpretation. The problem can be stated as follows. If the court is uncertain whether a child was habitually resident in the convention country from which the child has been removed, or whether the removal was in breach of a person's right of custody, what is the result? On the face of it, one would think that in such a case the applicant has failed to establish the conditions for the application of the Regulations, and the application must fail. However, the Regulations seem to place the onus on the respondent.
I now turn to the detail. In order to highlight the issues, I will summarise the law in a way that omits as much inessential material as possible. For example, the legislation refers to removals or retentions, but I will omit references to retentions. My purpose is to identify the issue of construction, not to restate every aspect of the regulations.
If the Australian Central Authority receives an application in relation to a child removed from a convention country to Australia, and is satisfied that the application is in accordance with the Convention and with the regulations, it must take action to secure the return of the child.[xxx] It may apply for an order for the return of the child to the country in which the child habitually resided immediately before the child's removal.[xxxi] The court may so order "if satisfied that it is desirable to do so" under regulation 15, although the apparent width of that regulation is illusory, because reg 16 sets out in a prescriptive way how the court must deal with applications. Reg 16 relevantly provides:-

16. Orders for the return of children

(1) Subject to subregulations (2) and (3), on application under regulation 14, a court must make an order for the return of a child…
(2) A court must refuse to make an order under subregulation (1) if it is satisfied that:
(a)the removal or retention of the child was not a removal or retention of the child within the meaning of these regulations; or
(b)the child was not an habitual resident of a convention country immediately before his or her removal or retention; …

(3) A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:
(a)the person, institution or other body making application for return of a child under regulation 13:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; …

I first turn to paragraph (a), that the removal "was not a removal… within the meaning of these regulations". What is such a removal? The answers appears to be in reg 3, which relevantly provides:-

REG 3 Meaning of removal and retention

3(1) A reference in these regulations to the removal of a child is a reference to the removal of that child in breach of the rights of custody of a person, an institution or another body in relation to the child if, at the time of removal, those rights:
(a) were actually exercised, either jointly or alone; or
(b) would have been so exercised but for the removal of the child.

Read with this definition, then, reg 16(2) provides that the court must refuse to make an order if satisfied that the removal was not in breach of the custody rights of a person that were being exercised. Clearly, if the court is so satisfied, there is no difficulty. But what is the position if the evidence is uncertain or incomplete, and the court is unable to determine the question one way or the other?
If the court cannot be satisfied that there was no removal within the meaning of the Regulations, regulation 16(2) does not apply. Does it follow that the court must order the child's return? A literal reading of reg 16(1) suggests so. Yet that result seems peculiar, since the applicant would succeed in a situation where the court was not able to say whether the basic conditions for ordering return had been made out.
A similar problem arises in relation to habitual residence. If the court cannot determine this issue, reg 16(2)(b) does not apply: the Court is not so satisfied. Does this mean that the child must be returned, again in a situation where the court is not satisfied about a basic condition?
If Regulation 16(1) applies in such situations, the result is that the court would order the return of children where it had not determined that the children had been (wrongfully) removed,[xxxii] or that they had been habitually resident in the convention country immediately before the removal.
That would seem contrary to the Convention. Article 12 provides for the relevant authority to order the child's return "where a child has been wrongfully removed", and that term is defined to mean removal in breach of the custody rights of a person under the law of the country in which the child was habitually resident immediately before the removal.[xxxiii] The idea that the authority would order the child's return where it had not determined that there had been a wrongful removal would startle any reader of the Convention, or the literature on it. (I have considered and rejected the argument that it would not be necessary for the Court to be so satisfied, because it could rely on the fact that the Central Authority needs to be satisfied that the application is in accordance with the Convention.)[xxxiv]
Is the conclusion, then, that Regulation 16(1) does not apply in such circumstances? On that approach, the court would not order a return unless it was satisfied that there had been a removal in the sense of the regulations. Such a result would seem the obvious one. But there are two difficulties with it. Firstly, one looks in vain for any clear statement in the regulations that the court must make such a finding. Secondly, if that were the correct interpretation, the effect might arguably be to reverse the onus created by reg 16(2). In other words, unless the applicant showed, for example, that the child had been an habitual resident of the contention country, the application would be refused, even if the court was not affirmatively satisfied that the child had not been so resident. In relation to at least some matters, reg 16(2) would be rendered useless.
For these reasons, in my view there is a difficulty in identifying the onus of proof in relation to at least some of the matters referred to in reg 16(2). I do not wish to extend this discussion in a case such as this, especially as these difficulties were not canvassed in the submissions.
On balance I have come to the conclusion that the regulation should not be interpreted in a way that would allow or require the court to order a child's return when it was not satisfied that there had been a removal within the terms of the Regulations, or a "wrongful removal" to use the more helpful terminology of the Convention. I reach this result because in my view there is an ambiguity or uncertainty in the regulations, and it is permissible and appropriate to have regard to the Convention in order to interpret it: an interpretation that would give effect to the Convention is more likely to be correct than one that would frustrate it. Further, the interpretation I favour is not strictly inconsistent with reg 16(2).

Habitual residence

I now turn to habitual residence. The question is whether the child was "an habitual resident of a convention country immediately before his removal", on 26 July 2000.[xxxv]
Some of the authorities deal with the phrase "habitual residence" but there was no suggestion that there is any relevant difference in the use of the phrase "habitual resident" in the Regulation.
Habitual residence is not defined either in the Regulations. It is a question of fact. The law was considered in Cooper v Casey.[xxxvi] I have considered the statements in this and other cases. However none of the statements are particularly relevant to the circumstances that arise in this case. The following general statement by Waite J in In Re B (Minors) (Abduction) (No 2),[xxxvii] is of some assistance:-
"1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.
2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration. All that the law requires for a "settled purpose" is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
3. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention. The House of Lords in Re J, sub nom C v S (above) refrained, no doubt advisedly, from giving any indication as to what an 'appreciable period' would be. Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F (above) the Court of Appeal approved a judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country."

The question is whether the child was a habitual resident of Italy immediately before 26 July 2000, the date of the removal. I find that when the parties travelled to Italy in July 1997 they did so with the intention of returning to live in Australia. At that time the child's habitual residence was in Australia. When the mother returned to Australia in January 1999 with the child, she intended to live here with the child. The father intended that she would remain the parent with custody (to use the language of the Convention). I am not sure whether at that time he intended himself to live in Australia. He later decided to remain in Italy, and communicated that decision to the mother in June 1999.
During the next period when the mother was living in Italy, the situation is more difficult. She and the child were living there for a year. She wanted to reconcile with the father. I am not sure that during the whole of that year she was still determined to live in Australia; I cannot rule out the possibility that she might have stayed in Italy if she had reconciled with the father. However by July 2000, when she left for Australia, I am satisfied that she intended to live permanently in Australia with the child, and that the father was content for that to happen. In those circumstances, though with some hesitancy, I conclude that the child was at that time habitually resident not in Italy but in Australia.
It follows that I am satisfied that the child was habitually resident in Australia at the time of the removal on 26 July 2000. Thus on any interpretation of the Regulations the application must be refused.
In my view it is quite clear that I could not be satisfied on the evidence that the child was habitually resident in Italy. That is, the only two possible findings are that the child was habitually resident in Australia, or that it cannot be determined in which country (if any) the child was habitually resident. Having regard to the interpretation I have earlier adopted as to the onus of proof, in the alternative I conclude that because I am not satisfied that the child was habitually resident in Italy immediately prior to the removal, the application must be dismissed.

Whether the father was exercising rights of custody

I find on the evidence that the father agreed to the mother departing with the child to live in Australia. The father wished to preserve a relationship with Michael, and wished to have contact with him, probably along the lines later formulated by him in November 2000. In these circumstances, I am satisfied that he was not exercising his rights of custody and would not have exercised them but for the removal of the child. For this reason, too, I must refuse to make an order.

Exercise of discretion under reg 16(3)

I have concluded that the application must be dismissed for the reasons I have given. In addition, I may refuse to order return if the mother establishes that the father had consented or subsequently acquiesced in the child being removed to, or retained in, Australia: reg 16(3)(a)(ii). For reasons already given, I find that the father consented to the child being removed to Australia. Thus, if the requirements of the application had otherwise been met, I would have to consider, as a matter of discretion, whether to order the child's return.
No submissions were made on this matter. However I can see no reason why I should order the child's return. He is now living in Australia with the mother. The father wishes to have contact, and the mother is willing for this to happen. Ordering a return would not benefit the child. Nor would it give effect to the operation of the Convention, since the father has consented to the mother living with the child in Australia. Thus, had it been necessary to consider Regulation 16(3), I would have exercised my discretion to refuse to make an order for the child's return.

Conclusion

For these reasons, the order will be that the application be dismissed.

I certify that the preceding 116 paragraphs are a true copy of the reason for judgment herein of the Honourable Justice Chisholm

Associate

NOTES

[i] De Lewinski v Department of Community Services (1997) 21 Fam LR 413, 428-9.

[ii] Evidence Act 1995 Cth s 67(4).

[iii] De Lewinski v Department of Community Services (1997) 21 Fam LR 413, 428-9.

[iv] Thus the Acts Interpretation Act 1901 (Cth), s 15AC, seems applicable.

[v]The seminal decision appears to be that of Jordan CJ in Beaumont v Yeomans (1934) 34 SR (NSW) 562, at 569. See, eg Bird v John Sharp & Sons (1942) 66 CLR 233; Mathieson v Burton (1971) 124 CLR 1. See generally the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 4^th ed 1996, ch 7. The theme of looking to substance not form pervades this chapter: see, eg the authorities cited at [7.22].

[vi] See also Boehm v DPP [1990] VR 494, 498.

[vii] Act Interpretation Act 1901 Cth, s 15A

[viii] It does so also in the later sub-sections, which I have not quoted.

[ix]De L v Director, New South Wales Dept of Community Services (1996) 187 CLR 640, at 660-661, 678-679 (HC).

[x] Regino and Regino (1995) FLC 92-587 at 81,814.

[xi]Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 at 553. See also Department of Health andCommunity Services v Casse (1995) FLC 92-629.

[xii]Attached to the affidavit of Doreen Muirhead affirmed 22 June 2001. I have corrected some spelling errors in the father's statement.

[xiii] Mother's second affidavit, paragraph 24.

[xiv]Unless otherwise indicated, I refer to the statement of the father dated 16 June 2001 that is Annexure "A" to Ms Muirhead's affidavit.

[xv] See paragraphs 2, 3 4 and 5 of his statement.

[xvi] Mother's first affidavit, paragraphs 3, 5.

[xvii] Exhibit A.

[xviii] Mother’s third affidavit, paragraph 14.

[xix] Mother’s second affidavit, paragraph 23.

[xx] See the remarks of Lindenmayer J in Regino and Regino (1995) FLC 92-587 at 81,814-81,815.

[xxi] Mother's first affidavit, paragraph 6.

[xxii] Paragraph 1 of the father's statement appears to relate to this episode.

[xxiii] Father's statement, paragraph 10.

[xxiv] Mother's third affidavit, paragraph 7.

[xxv] Mother's third affidavit, paragraph 7.

[xxvi] Mr B’ affidavit, paragraph 11.

[xxvii] Father’s statement, paragraph 9.

[xxviii] See the mother’s first affidavit, paragraph 24.

[xxix]DeL v Director, New South Wales Dept of Community Services (1996) 20 Fam LR 390, 403, 417 (HC), and most recently by the High Court in DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services [2001] HCA 39 (27 June 2001), unreported.

[xxx] Reg 13(1).

[xxxi] Reg 14(1)(a).

[xxxii] "Wrongfully removed" is the term used in Article 12 of the Convention.

[xxxiii] Article 3.

[xxxiv] Regulation 13(1)(b).

[xxxv] Regulation 16(2)(a).

[xxxvi] Cooper v Casey (1995) 18 Fam LR 433.

[xxxvii]Re B (Minors) (Abduction) (No 2 ) [1993] 1 FLR 993; Re B (Minors) (Abduction) (No 2 ) [1993] 1 FLR 993.

[2001] FamCA 926

6 July 2001

Key Legal Topics

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Family Law

Statutory Interpretation

Administrative Law

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Consent

Jurisdiction

Statutory Construction

Procedural Fairness