Director-General of the Dept. of Community Services Central Authority & R M S

[1999] FamCA 1049

[1999] FamCA 1049

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT SYDNEY  FILE NO:  SY2500 OF 1998

BETWEEN

DIRECTOR-GENERAL OF THE

DEPT. OF COMMUNITY SERVICES

CENTRAL AUTHORITY

(Applicant)

AND

R. M. S.

(Respondent father)

DATE OF HEARING:	10 May 1999
DATE OF JUDGMENT:	10 May 1999

EX-TEMPORE JUDGMENT OF THE HONOURABLE

JUSTICE CHISHOLM

APPEARANCES:			V. Hartstein, counsel instructed by Mr I.V. Knight, Crown Solicitor’s Office DX 19 Sydney for the Applicant Central Authority.
Mr C. Dezarnaulds, solicitor, from Peter R. Murphy & Co. DX 12007 Bondi Junction appeared on behalf of the respondent father.

DIRECTOR-GENERAL OF THE DEPT. OF COMMUNITY SERVICES v R. M. S.

Family Law - Child abduction - Hague Convention – Whether court should make contact orders pending child’s return - Object of Convention - Family Law (Child Abduction Convention) Regulations reg 15(1)(b)

Family Law - Child abduction - Hague Convention – Costs - Family Law (Child Abduction Convention) Regulations reg 30

The parents were married in Switzerland in 1992 and moved to Perth, Western Australia in January 1993.  They separated in April 1993 and were divorced in July 1994.  Their child, A., was born in July 1993 and was aged 5 at the time of the hearing.  In April 1995 the mother and child returned to Switzerland to live.  In 1995 the father travelled to Switzerland and had contact with the child.  In October 1997 a Swiss court made an interim order granting the mother custody of the child and granting the father visiting rights. 

In December 1997 the father did not return the child after a period of contact, but travelled with him to Australia and went into hiding.  He later changed his and A.’s surnames.  The mother took steps to have the child located.  The father and child were eventually discovered in March 1999, and the child was returned to the mother in Sydney. 

The Central Authority brought proceedings under the Hague Convention regulations for the return of the child to Switzerland.  During April 1999 the Family Court made orders that the child have “continuous contact” with the mother, and granted the father telephone contact with the child. 

The father did not contest the Hague Convention application, but sought orders that he have contact with the child in an apartment of a friend pending the departure of the mother and the child.  The Central Authority opposed this application, though it was willing to arrange for some contact in its own offices.

Held:-

1. That the purpose of the Convention is to ensure the swift return of abducted children to the country from which they have been abduced so that the courts of that country can deal with any matters relating to contact and residence.

De L v Director General NSW Dept of Community Services (1997) 21 Fam LR 432 referred to.

1. It would have the potential to frustrate or delay the operation of the Convention if the courts of the country to which the children had been removed were to get involved in hearing application for contact orders. It was therefore not appropriate for the court to deal with the husband’s application for contact as an application under the provisions of the Family Law Act.

2. There may perhaps be circumstances in which the court might make what is in effect a contact order under Regulation 15(1)(b) of the Family Law (Child Abduction Convention) Regulations where such an order is appropriate to give effect to the Convention, although it was not obvious how the orders sought by the father fell within that phrase.

3. On the facts, and having regard to the Department’s willingness to arrange for supervised contact in its offices, the orders sought by the father would not be likely to promote the best interests of the child or serve the purposes of the Convention.

4. On any view of the appropriate principles for awarding costs under Regulation 30, the father should be ordered to pay the costs of the Department.

Introduction

1. These are proceedings arising under the Hague Convention on the International Abduction of Children.  The court also has before it an application by the father for orders for contact. 

2. The application and its basis are conveniently set out in the practice direction document handed to the court on behalf of the Director General, Department of Community Services which is the Central Authority for the purpose of the regulations.  The Central Authority relies on the affidavits referred to at the beginning of that document and also an affidavit by Mercedez Morena sworn on 7 May 1998.  The application on which the Department relies was filed on 28 January 1998.

3. The orders sought by the Department are the order 1 to 4 set out in annexure B to the affidavit by Ms Morena sworn on 7 May 1999.  Those orders are:

   (1)That the child A., born on 24 July 1993 be returned to Switzerland as soon as practicable in the company of [the mother];

   (2)That the names of [the respondent father] and the child be removed from the airport watch list at all international airport terminals within the Commonwealth of Australia;

   (3)That all other orders made by the court be discharged;

   (4)That the matter be removed from the pending cases list.

4. In addition to that, the Central Authority seeks an order that the Director General be at liberty to return her passport to [the mother] and that the respondent pay the applicant’s costs as agreed or assessed.

5. The father’s application was filed on 7 May 1999 and seeks that the applicant be granted access to [the child] in the apartment of E. M. at [address] for 2 half days consecutively between the hours of 11.00am and 5.00pm prior to the child leaving Australia.  Such access is to be supervised professionally by a paid security officer employed by [a named security firm] or any other acceptable security agency approved by DOCS.

6. That application is supported by an affidavit of the father sworn on 7 May 1999.  The father also relies in relation to the Hague proceedings on another affidavit of his which is sworn on the same day, and an affidavit by [the mother] sworn on 6 May 1999.  In case there has been any difficulty in this respect, I have taken into account all of that affidavit material on behalf of the father in relation to both applications. 

7. The background facts need not be described in detail because the father made no opposition to the making of orders under the Hague Convention.

8. By way of brief summary, the parties were married in Switzerland on 22 February 1992.  In January 1993 the mother and the husband moved to Perth, Western Australia where they separated in April 1993.  On 24 July 1993 the child A. was born.  He is now 5. 

9. The parties were divorced in July 1994.  In April 1995, the mother and child moved back to Switzerland where they lived with her parents. 

10.  In June 1995, the husband also travelled to Switzerland where he remained for some months.  During those months there was some contact between him and the child. 

11.  In January 1997 the mother applied for custody of A. with visiting rights for the father and maintenance.  On 14 October 1997, an interim order was made by a Swiss Court granting interim custody of A. to his mother with visiting rights every second weekend to his father.

12.  On 22 December 1997, the father, having not returned the child at the end of a period of access, travelled with the child to Australia and went into hiding.  The mother took appropriate proceedings, and on 28 January 1998 an application was filed by the Central Authority in the Family Court of Australia.

13.  Orders were made on that day in accordance with the application by the Central Authority.  Those orders could be summarised as follows.  The child was not to be removed from the Commonwealth of Australia until further order.  A warrant was to issue, essentially so that the whereabouts of the child could be discovered, and steps were taken to prevent the child and the father from leaving the country.

14.  It seems that during the course of 1998, elaborate measures were taken by the authorities in Australia to try and discover the whereabouts of the child and the father, but they were unable to locate them.  In April of 1998, the father changed his own surname and the surname of the child to a different surname. 

15.  They were not discovered until about March 1999, when the child was escorted by a Federal Agent from Brisbane to Sydney and reunited with the mother. 

16.  On 9 April 1999, Cohen J made an order that the child have continuous contact with the wife until 5 pm on Monday 10 May 1999.

17.  On 12 April 1999 his Honour made the following orders:

1.That the husband’s application for contact is refused.

2.That the husband is granted contact with the said child each Wednesday between 6.30 pm and 7 pm by telephone.

3.That the wife is to arrange for the husband to be telephoned for such contact provided that the husband gives the wife, through the parties’ respective solicitors, his telephone number.

The Hague Convention Application

18.  I first deal with the application under the Hague Convention.  As I have mentioned there was no opposition to this application and no submissions were made to the effect that the Convention did not apply, or that any of the exceptions referred to in Regulation 16 applied.  Nor was it submitted that there was a period of more than one year between the wrongful removal and the filing of the application.  In these circumstances I think it is necessary to do no more than say that having regard to the material filed on behalf of the Central Authority I am satisfied that all the necessary requirements of the Convention have been met and it is appropriate to make an order for the return of the child to Switzerland.

Contact

19.  The matter really in issue in the proceedings before me related to the contact that the father wishes to have with the child between the present time and the departure of the child and the mother for Switzerland.  Mr Dezarnaulds, who appeared for the husband, made a number of submissions in relation to his application.  In essence, his application is that he have an opportunity to spend time with the child in the unit or apartment of his friend for a time before the child and the mother depart.  Mr Dezarnaulds argued that the contact that he has been allowed to date is inadequate, and was critical of the handling of the matter by the Department of Community Services.

20.  The alternative, I should mention, is that the child have contact with the father for a period of some hours, or perhaps more than one such period, in the offices of the Department of Community Services. 

21.  It was a strong point of his submission that the contact would be supervised at the cost of the father by a private security firm about which some evidence was tendered.  Mr Dezarnaulds also said that the father would accept supervision by some other appropriate security firm selected by the Central Authority or the mother.  He argued that the child would then be with the father in a familiar environment, well known to him, and that would be a more comfortable and suitable situation to the alternative. 

22.  It was submitted that it was, to quote Mr Dezarnaulds, “bordering on inhuman” not to have the sort of contact the father required.  He stressed that the child has been with the father for 15 months and on the father’s evidence, or at least on his instructions, every time the child speaks on the phone he expresses the desire to see the father.  Mr Dezarnaulds said that the environment of the Department of Community Services resembles a prisoner having a visitor and that this is unsatisfactory for a child.  He said that the possibility of the father absconding with the child was remote.  He said that he could understand the mother’s fears but stressed that on the father’s case he may not see the child for a considerable time.  The difficulty in this respect is not only that the mother and child will be in Switzerland but on the father’s case he might be exposed to criminal proceedings in Switzerland and for that reason may not be able to return there with safety.

23.  Mr Dezarnaulds also referred to the husband’s evidence that the mother had indicated that she would allow him to see the child in E. M.’s apartment.  He said that the resistance to this proposal comes from the Department and not from the mother.  There is no supporting evidence relating to this matter and it is denied on behalf of the Central Authority. 

24.  I am not able, on the state of the evidence, to make a finding that the mother is content for the child to see the father in E. M.’s apartment.  Such a proposal from the mother, I must say, seems rather unlikely given the other evidence in the case including the e-mail communication which was referred to by Miss Hartstein.

25.  I can understand, of course, that the father greatly wishes some further contact with the child before the child returns to Switzerland.  I understand the force of the argument that the child has been with him for 15 months and that he fears that it may be a long time before he sees his son again.  However, although these matters are no doubt distressing to him, it is impossible to avoid making the obvious point that the present situation appears to be essentially the result of his illegal actions in relation to the child.

26.  There are some difficulties, in my opinion, in dealing with the husband’s application for contact.  First, it is not at all obvious to me that it is appropriate for the court, in circumstances such as the present, to entertain an application for contact by the parent who has abducted the child.  The purpose of the Convention, in a word, is to ensure the swift return of abducted children to the country from which they have been abducted so that the courts of that country can deal with any matters relating to contact and residence.[1] It would have the potential to frustrate or delay the operation of the Convention if the courts of the country to which the children had been removed were to get involved in making contact orders. In my view, therefore, it is not appropriate for the court to deal with the husband’s application for contact as an application under the provisions of the Family Law Act.

[1]See De L v Director General NSW Dept of Community Services (1997) 21 Fam. LR 432

27.  It may well be, however, that the court has jurisdiction to deal with such an application under the Child Abduction Regulations.  Regulation 15 provides that:

If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under Regulation 14:

………

(b)make any other order that the court considers to be appropriate to give effect to the Convention.

28.  It is possible, perhaps, that there are circumstances in which the court might make, in effect, a contact order under Regulation 15(1)(b).  Even if this is the case, however, as Miss Hartstein pointed out, any such orders must be, to use the words of the Regulation, “appropriate to give effect to the Convention”.

29.  It is not at all clear to me how the orders sought by the husband relating to contact fall within that phrase. 

30.  Even if I were to disregard these legal difficulties, it seems to me that on the facts of the matter, it is not appropriate to make orders in terms sought by the husband.  Without going into the history of the matter, it seems to me quite obvious that the mother and the Department have cause for concern about any situation in which there is the slightest opportunity for the father to again abduct the child.  In these circumstances, it would, in my view, both have a potential of frustrating the operation of the Convention and also have the potential of damaging the child if contact took place in circumstances other than those providing the maximum safety for any face to face contact.

31. For those reasons, notwithstanding all the matters put by Mr Dezarnaulds (who I think said everything possible on behalf of his client) it seems to me that even on the view of the law most favourable to the father – that is, that the court could make contact orders under the Family Law Act – it would not be appropriate in these circumstances of this case to make such orders. I do not think such orders would be likely to promote the best interests of the child. Secondly, in terms of the Convention, I am not satisfied that such orders would serve the purposes of the Convention.

32.  In my view, and contrary to the submissions on behalf of the husband, the evidence shows that the Department and the mother have been willing to make appropriate arrangements for contact in the particular circumstances of this case. I am told that the Department is willing to make a particular office, and also members of its staff available, so that supervised contact could happen on at least one and perhaps more than one occasion in the security of the Department’s building. There has also been some telephone contact pursuant to the orders previously made. 

33.  In these circumstances, it seems to me that there has not been a case made for any need to make any orders binding on the mother or the Department.  I see no reason to doubt that they would continue to make sensible and practicable arrangements for contact between now and the time of departure of the child and the mother. 

34.  I have therefore come to the conclusion that it is most likely to promote the child’s interests and to give effect to the purpose of the Convention if I make no orders relating to contact but leave it to the Department and to the mother to deal with these questions.  Indeed from every point of view, in my opinion, it is imperative that the mother and the child leave for Switzerland at the earliest possible time.

Costs

35.  An application has been made on behalf of the Authority for costs.  The court has power to make such orders under regulation 30 of the Child Abduction Convention Regulations.  Regulation 30 provides:-

30.  If a court makes an order under 15, 17, 24 or 25 the court may, on the application of the responsible Central Authority, make an order directing that the necessary expenses incurred by or on behalf of the applicant, including:

(a)travelling expenses; and

(b)costs incurred in respect of locating a child, and

(c)costs of legal representation of the applicant, and

(d)expenses incurred in respect of the return of the child;

be paid by the person who removed the child to, or retained the child in, Australia or who prevented the exercise of rights of access, as the case may be.

36.  On behalf of the Central Authority, it was submitted that this was a clear case in which the child had been kidnapped and the father retained the child in hiding in Australia for a considerable period, and resorted to various measures including changing the child’s name and moving around the country.

37.  Further, Ms Hartstein argued that the father could have consented but did not do so, in an attempt to obtain greater contact with the child prior to the completion of the Hague Convention proceedings.  She referred to one or two other matters including an apparent contradiction by the husband in evidence previously given, where he said he had no bank account as compared with his present application to release an order restricting his access to a bank account in Australia.  She also referred to the huge amount of effort that had been undertaken by various public authorities in locating him.  She argued that, although there may be some cases in which it is not appropriate to order costs, this is a clear case in which it is appropriate.

38.  On behalf of the husband, Mr Dezarnaulds argued that the husband did not seek to delay these proceedings. He renewed his submissions relating to questions of contact, and renewed his criticism of the Department in not granting the husband more contact with the child than they have.  He also said that his client had made it clear to the Department in advance that there probably would not be opposition to the Hague application.  Of course, it is of no comfort to a litigant to be told that there would probably be no opposition to an application, since the litigant in that circumstance could not possibly come to the court on the assumption that there would be no opposition.  The litigant must prepare the case in exactly the same way as if there had been no such suggested lack of opposition.

39.  Mr Dezarnaulds said that in most Hague cases, costs are not awarded.  I do not know if this is true or not, but even if it is, the court must exercise its discretion according to legal principles.  Even if it is true that costs are rarely awarded in Hague cases, it may be appropriate to award them in a particular case. 

40.  Mr Dezarnaulds also sought to give an explanation (which I do not completely understand) about the husband’s apparent contradiction in relation to the bank account.  He also made the point, which I think has some merit, that the husband has not apparently attempted to influence the child against the mother during the period that he was in hiding with the child. 

41.  Despite this point, and the other matters raised by Mr Dezarnaulds, I regard this as a clear case in which it is appropriate to make a costs order.  The husband has quite deliberately set out to defy orders of courts in a number of countries at a risk to the child and at great public expense. 

42.  I can see no basis on which the court should not make an order for costs in these circumstances.  In reaching this conclusion, I assume that in exercising its discretion under regulation 30, the court should exercise a discretion and should, among other things, take into account the result of the proceedings.  On any view of the appropriate principles on the awarding of costs in matters arising under regulation 30, it seems to me this is a case where costs should be ordered, and I will make the appropriate order.

43.  I make the following orders:

1. That [the mother] and the Central Authority do all things necessary to cause the child A. to be returned to Switzerland as soon as practicable in the company of his mother.

2. That the Central Authority in consultation with the mother make such arrangements as it sees fit relating to contact between the father and the child pending the child's return to Switzerland.

3. That all relevant officers of the Australian Police force be authorised and directed to remove the names of [the father] and of the child from the Airport Watch List at all International Airport Terminals within the Commonwealth of Australia.

4. That all other orders previously made by the Court (other than orders relating to any bank account of the husband) in these proceedings be discharged.

5. That the Director-General of Community Services be at liberty to return the mother's passport to her.

6. That the father's application for contact filed 7 May 1999 be dismissed and removed from the Active Pending Cases List.

7. That the father pay the costs of the Central Authority of and in relation to the application by the Central Authority filed 28 January 1998 and the father’s application filed 7 May 1999 as agreed or assessed.

8. That upon payment of any costs payable under these orders the husband have leave to apply to the Court to set aside any order restricting his access to any bank account.

9. That the application by the Central Authority filed 28 January 1998 and the father's application for contact filed 7 May 1999 be removed from the Active Pending Cases List.

I certify that this and the 43 preceding paragraphs are a true copy of the reason for judgment herein of His Honour Justice Chisholm,

Associate