MHP & Director-General Department of Community Services

[2000] FamCA 673

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 22 of 2000
File No. SY 2011 of 2000

IN THE MATTER OF:

MHP

Appellant/Father

- and -

DIRECTOR-GENERAL
DEPARTMENT OF COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

BEFORE:                 Ellis, Coleman and Flohm JJ
HEARD:                   5^th day of May 2000
JUDGMENT:           26^th day of May 2000

APPEARANCES: Mr. Lethbridge of Counsel, (instructed by Lee Turnbull & Co, Solicitors, 1^st Floor, 350 Flinders Mall, Townsville Qld 4810) appeared on behalf of the appellant father.

Ms. Hartstein of Counsel, (instructed by R C Best, Director, Legal Services, Department of Community Services, 164-174 Liverpool Road, Ashfield NSW 2131) appeared on behalf of the respondent.

CatchwordsCHILD ABDUCTION – (Child Abduction Convention) Regulations 1986 – Interpretation of Regulation 13(4) – Regulation 14 – Regulation 16(3) – grave risk to return child.

This was an appeal by the father against the orders of Chisholm J on 21 March 2000 whereby his Honour ordered the return of a child to the United Kingdom (UK) forthwith.

The proceedings before the trial Judge were brought pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) which find expression in Australian law in the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

The father was born on 28 August 1951 and was accordingly 48 years of age. The mother was born on 24 November 1960 and was thus aged 39 years of age. The parties commenced cohabitation in about December 1989. The parties separated on 2 August 1999, at which time the mother went to Scotland taking with her the child of the parties, who was born on 18 April 1997.

On or about 11 August 1999, the mother made arrangements to travel to Australia with the parties’ child, her reasons including her wish to commence a relationship with GW who was an Australian resident. On 13 August 1999, the father commenced proceedings in the UK in the Tunbridge Wells County Court. At about the same time, the mother departed the UK and arrived in Townsville. On 30 August 1999, the father learned of the presence in Australia of the mother and child. On 6 September 1999, the father commenced proceedings in the Family Court of Australia at Townsville for disclosure, contact and a recovery order.

On 14 September 1999, the father filed an application for the return of the child to the UK. On 15 September 1999, the mother filed a response seeking interim and final orders for residence, and permission to remain in Australia pending determination of the proceedings. On 16 September 1999, Barry J dismissed the mother’s application to remain in Australia and made an interim order for residence in favour of the mother, upon her undertaking to return the child to the UK. The mother then returned to the UK with the child in compliance with her undertaking. On 4 October 1999, the High Court of Justice in the UK granted leave to the mother to return the child to Scotland, the father being entitled to contact. The orders provided that such contact take place in England.

On 10 December 1999, during the course of a contact period, the father removed the child to Australia. On 11 and 17 December 1999, recovery and wardship orders respectively, were made in the High Court in favour of the mother.

On 23 December 1999, the Central Authority for England and Wales requested the Central Authority in Australia to commence proceedings for the return of the child to the UK pursuant to the provisions of the Hague Convention. On 4 January 2000, the Central Authority filed an application in the Family Court of Australia pursuant to such request. On 4 January 2000, orders were made by Rowlands J following an ex parte application, inter alia, for the issue of a warrant. In February 2000, the warrant was executed, the father was placed in detention by immigration authorities, and the child was returned to the mother. The proceedings before Chisholm J were heard on 1, 2, 3, 14, 17 and 21 March 2000.

The trial Judge considered the provisions of Regulation 13 of the Child Abduction Regulations. His Honour rejected the submission on behalf of the father that the failure to comply with the provisions of Regulation 13(4) prevented the Court from making an order for the return of the child under Part 3 of the Regulations.

The trial Judge considered whether the child was resident in Scotland, and the consequences of that finding. His Honour concluded that ‘the mother had established habitual residence in Scotland by the time the father left for Australia’.

The trial Judge concluded that Regulation 13(1) did not place any restriction on the person or body which could apply to the Commonwealth Central Authority. His Honour considered the ‘United Kingdom of Great Britain and Northern Ireland’ was a Convention country. Accordingly, the ‘country’ included Scotland, which was within the country of the United Kingdom.

Reference was also made to Regulation 14. The trial Judge concluded that Regulation 14 did not support the father’s contention in relation to the appropriateness of the request having come from the Central Authority for England and Wales. It followed that his Honour did not regard the finding that the child was habitually resident in Scotland, as distinct from England, as precluding the making of an order for the return of the child.

His Honour referred to the provisions of Regulation 16(3). The ‘critical matter’ was identified as being whether the return of the child to the United Kingdom would expose her to grave risk. Ultimately, the trial Judge was not satisfied that ordering the return of the child would expose the child to any significant or grave risk.

It was submitted on appeal that: -

“1.That His Honour erred in law in failing to deal with the argument advanced by the Appellant that the proceedings were defective in that the applicant Central Authority for England and Wales had no standing to bring the proceedings because the appropriate applicant was the Central Authority for Scotland.”
2.In the alternative to ground 1 above his Honour erred in law in having found that the child was habitually resident in Scotland. His Honour erred in finding that he could not permit a technical argument to prevent him from ordering the return of the child if the circumstances would otherwise warrant it.
3.That his Honour erred in law in concluding that the provisions of Regulation 13(4) had no connection with the powers of the Court to order the return of the child in circumstances where the Central Authority in Australia had failed to comply with such Regulation.
4.That his Honour erred in law by finding that there was no grave risk posed to the child by being returned to England or Scotland and by being in contact with GW.

Held: -

The trial Judge did not err in holding that the Cental Authority in Australia was entitled to commence proceedings for the return of the child to the United Kingdom pursuant to the request made by the Central Authority for England and Wales. The Court did not accept, as a matter of construction, that the Regulations must necessarily be read subject to the provisions of the Convention. The Commonwealth of Australia becoming a signatory to the Convention did not of itself render the Convention part of the laws of Australia. By virtue of s.111B(1) of the Family Law Act, the Regulations were made in order to ‘enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention’. The legislative intention must have been that, provisions of the Convention not appearing in the Regulations do not form part of the laws of Australia. In any event, reading the provisions of the Convention into the Regulations produced no inconsistencies which advanced the father’s contention. Accordingly, the Court did not regard Grounds 1 and 2 as having merit.

The Court was of the view that it should determine the intention of the legislature by examining the language of the relevant provision and the scope and object of the whole statute. The Court referred to the language of the Regulation 13(4) and to other Regulations, none of which evidenced an intention that failure to comply with Regulation 13(4)(a) or 13(4)(b), invalidated any order made under Regulation 13(4)(c). In the view of the Court, the language of Regulation 13(4) and the scope and object of the scheme created by the Regulations, were inconsistent with construing the power to make an order for the return of the child as being conditional upon the Central Authority having complied with Regulation 13(4)(a) and Regulation 13(4)(b) prior to making such order. Accordingly, the Court did not regard Ground 3 as having substance.

The Court was of the view that the conclusions reached by the trial Judge in relation to Regulation 16(3) did not fall outside the ambit of a reasonable exercise of his discretion. The contentions on behalf of the father in relation to ‘grave risk’ of actual physical harm or abuse by GW accordingly lacked merit. Further, the Court was not persuaded that the procedural difficulties asserted on behalf of the father properly supported a ‘grave risk’ finding within the terms of Regulation 16(3)(b). Further, the Court was not persuaded that the procedural difficulties asserted on behalf of the father in support of his claim that a return involved ‘grave risk’ within Regulation 16(3)(b), would be likely to prevent a Court in the United Kingdom making orders which operated to protect the child from ‘physical or psychological harm or otherwise place the child in an intolerable situation’. Further, the Court was unable to accept that the evidence referred to by counsel for the father would not be able to be brought before a Court in the United Kingdom. Accordingly, Ground 4 was not made out.

Appeal dismissed. Appellant father ordered to pay the Central Authority’s costs.

Reportable

By Notice of Appeal filed 24 March 2000, MHP (hereinafter referred to as “the father”) appealed against orders made by Chisholm J on 21 March 2000 in the following terms:
“1That the child, SFOP born 18 April 1997 be returned forthwith to the United Kingdom in the company of her mother, MLO born 24 November 1960.
2That upon presentation of the child SFOP born 18 April 1997 to the International Airport at Sydney for the Departure to the United Kingdom in accordance with order 1, the names of the Respondent father MHP born 29.8.1951 (sic) and that of the child be removed from the P.A.S.S. alert system at all International Airport Terminals and all International Sea Port Terminals within the Commonwealth of Australia.

3.That the legal representatives for the Applicant hand over the British passport belonging to MLO born 24 November 1960 upon her presentation to the Sydney International Airport with the child, SFOP.”

In lieu of the orders made by the trial Judge, the father sought orders in the following terms:
“That the child SFOP remain living in the care of her mother MLO in the state of New South Wales.
That MLO be restrained from bringing the child S into contact with one GW, of Townsville.
That the applicant have daily contact with the abovenamed child forthwith on terms to be agreed between the applicant and the mother.
That the respondent Department pay the applicant’s costs of and incidental to this appeal.”
The respondent to the appeal, the Central Authority (on behalf of the Director-General, Department of Community Services) (hereinafter referred to as “the Central Authority”), which was the applicant in the proceedings before the trial Judge, resisted the father’s appeal.

At the commencement of the hearing of the appeal, counsel for the father sought leave to amend the Notice of Appeal to seek, in lieu of the orders originally sought, the following orders:
“(1)That the father’s appeal be allowed and the orders made by his Honour Mr Justice Chisholm on 21 March 2000 be set aside.
(2)That in the alternative to the orders sought in paragraph (1) above, an order that the orders made by his Honour Justice Chisholm on 21 March 2000 be stayed pending further order and upon the granting of that stay, the father’s appeal be adjourned to be re-listed on determination of the mother and father’s competing applications for residence filed in the Family Court of Australia at Townsville.

(3)That the mother and the father’s applications for residence filed in proceedings no. TV 1556 of 1999 be expedited.

(4)That pending determination of the mother and the father’s competing applications for residence, each of the mother and the father be restrained from removing the child SFOP born 18 April 1997 from the Commonwealth of Australia.

(5)That pending determination of the mother and the father’s said applications for residence, the mother be restrained from bringing the child S into contact with Mr GW of Townsville.”

Counsel for the Central Authority opposed the granting of leave, on the grounds that no notice of intention to amend had been given, that the Central Authority had no knowledge of the status of the proceedings in the Family Court of Australia at Townsville and in reliance upon Regulation 19 of the Family Law (Child Abduction Convention) Regulations, which provides:

“19.If an application for the return of a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 18, until the application is determined.”

It was not asserted that the Central Authority would be prejudiced by granting leave to amend as sought. Notwithstanding the opposition of the Central Authority, the Court granted leave to amend as sought. The Court indicated that counsel for the Central Authority could seek time in which to obtain further instructions in relation to the particular matters complained of should that prove necessary. No application of that kind was subsequently made.

BACKGROUND

The proceedings before the trial Judge were brought pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) which find expression in Australian law in the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

The matter not being devoid of factual complexity, reference to some materials facts is helpful.

The father was born 28 August 1951 and was accordingly 48 years of age at the time of the hearing before the trial Judge. The father was previously in a relationship with MLO (hereinafter referred to as “the mother”). Cohabitation between the parties commenced in about December 1989.

The mother was born on 24 November 1960 and was thus aged 39 years of age at the time of the hearing before the trial Judge. The parties separated on 2 August 1999, at which time the mother went to Scotland taking with her the child of the parties, SFOP (hereinafter referred to as “the child”), who was born on 18 April 1997. The child was accordingly almost 3 years of age at the time of the hearing before the trial Judge and was the subject of those proceedings.

On or about 11 August 1999, the mother made arrangements to travel to Australia with the parties’ child, her reasons including her wish to commence a relationship with one GW (hereinafter referred to as “GW”). Correspondence then passed between solicitors for the parties in relation to contact arrangements between the father and the child. On 13 August 1999, the father commenced proceedings in the Tunbridge Wells County Court. At about the same time, the mother departed the United Kingdom (UK) and travelled to Cairns via Hong Kong, ultimately arriving in Townsville.

On 27 August 1999, the Tunbridge Wells County Court made an order for disclosure of the child’s whereabouts and for contact on the application of the father. On 30 August 1999 the father learned of the presence in Australia of the mother and the child. On 1 September 1999, the mother’s Australian solicitors advised the father that the mother was in Australia, and did not intend to return to the UK in the immediate future.

On 6 September 1999, the father commenced proceedings in the Family Court of Australia at Townsville for disclosure, contact and a recovery order. On 7 September 1999, Barry J made orders on an ex parte application for contact, separate representation and disclosure. On 8 September 1999, the mother filed a Form 8 application in the Family Court and Jerrard J varied the existing orders for contact, imposing a requirement of supervision. On 14 September 1999, the father filed an application for the return of the child to the UK. On 15 September 1999, the mother filed a response seeking interim and final orders for residence, and permission to remain in Australia pending determination of the proceedings.

On 16 September 1999, Barry J dismissed the mother’s application to remain in Australia and made an interim order for residence in favour of the mother upon her undertaking to return the child to the UK. Evidence was given by the mother during the hearing before Barry J of her intention to reside permanently in Australia. Evidence was also given on the mother’s behalf that she intended to marry GW. The mother then returned to the UK with the child in compliance with her undertaking.

On 4 October 1999, the High Court of Justice in the United Kingdom granted leave to the mother to return the child to Scotland, where the mother intended to live, for periods of three weeks at a time, the father being entitled to contact for periods of ten days at the end of each three week period. That order was varied on 6 December 1999 to permit the mother to remain in Scotland for four weeks and the father to have contact for seven days. The orders provided that such contact take place in England.

On 10 December 1999, during the course of a contact period, the father removed the child to Australia. On 11 and 17 December 1999, recovery and wardship orders respectively, were made in the High Court in favour of the mother.

On 23 December 1999, the Central Authority for England and Wales requested the Central Authority in Australia to commence proceedings for the return of the child to the UK pursuant to the provisions of the Hague Convention. On 4 January 2000, the Central Authority filed an application in the Family Court of Australia pursuant to such request. On 4 January 2000, orders were made by Rowlands J following an ex parte application, inter alia, for the issue of a warrant. In February 2000, the warrant was executed, the father was placed in detention by immigration authorities, and the child was returned to the mother.

The proceedings before Chisholm J were heard on 1, 2, 3, 14, 17 and 21 March 2000.

JUDGMENT OF THE TRIAL JUDGE

Having identified the competing applications, the trial Judge set out a series of background facts, none of which has been challenged before us (AB 8-11).

The relevant legal principles were referred to by the trial Judge with reference to the decision of the Full Court of the Family Court of Australia in Laing v Central Authority (1996) FLC 92-709. The trial Judge identified “...three arguments raised on behalf of the respondent father” which his Honour summarised as being:

1.“...whether it is an impediment to the court making the orders that the Central Authority had not sought to mediate the dispute”;

2.“...whether the child’s habitual residence in Scotland, as the father asserts it to be, creates an impediment to the court making the orders sought by the Central Authority”; and

3.“...whether to make the orders sought by the Authority would expose the child to a grave risk.”

Each of the three matters so identified is the subject of a Ground of Appeal before us.

Under the heading “The Central Authority’s alleged failure to mediate” the trial Judge considered the provisions of Regulation 13 of the Regulations which “...give effect to the Convention on the Civil aspects of International Child Abduction” and the submissions made by Senior Counsel then appearing for the father (AB 11). His Honour concluded that:

“Having regard to the nature of this case, it seems to me that there is simply no evidence to suggest that there was any measure that the Central Authority should have carried out that it failed to do so. This seems to me to be a case in which there was little, if any, likelihood of any amicable resolution and nothing in the later development of the case seems to cast any doubt on that conclusion.” (AB 12 paragraph 25).

His Honour rejected the submission on behalf of the father that the failure to comply with the provisions of Regulation 13(4) prevented the Court from making an order for the return of the child under Part 3 of the Regulations. His Honour accordingly rejected the father’s first challenge to the making of an order.

The second matter raised on behalf of the father before the trial Judge was considered under the heading “Whether child resident in Scotland, and consequences of that finding” (AB 13 paragraphs 27-60). After discussing the evidence, and a number of authorities, the trial Judge concluded that the mother had “...ceased to be habitually resident in England when she left for Scotland in August [1999] with the intention of living there permanently. There was a temporary change of mind in September, but it seems that at least by December the mother was back in Scotland with the intention to stay there at least indefinitely” (AB 14 paragraph 33). His Honour concluded that “...the mother had established habitual residence in Scotland by the time the father left for Australia” (AB 14 paragraph 35). It has not been asserted by either party before us that his Honour was not entitled to so conclude.

The trial Judge considered that “The next question is the legal relevance of this finding of fact” (AB 15 paragraph 36) and referred in that context to Article 31 of the Hague Convention which provides:
“In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units-
(a)any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
(b)any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.”
The father’s submission that a “...definition from the Convention” could be read into the Regulations (AB 15 paragraph 41) was rejected by the trial Judge who concluded that Regulation 13(1) did not “...place any restriction on the person or body that can apply to the Commonwealth Central Authority. It does provide, however, in sub-regulation (1), that the Commonwealth Central Authority must take action to secure the return of the child to the country in which he or she habitually resided immediately before the removal” (AB 16 paragraph 42). His Honour considered “...what is meant by country in the context of the regulations” (AB 16 paragraph 43) and noted that, under Regulation 10, and the Schedule to the Regulations, the “United Kingdom of Great Britain and Northern Ireland” was a Convention country. Accordingly, the “country” includes Scotland, which was within the country of the United Kingdom, “...rather than the country of Scotland; and the United Kingdom rather than Scotland is the signatory to the Convention”.

Reference was made to Regulation 14, which is in the following terms:

“(1)In relation to a child who is removed from a convention country to, or retained in, Australia, the responsible Central Authority may apply to a court in accordance with Form 2 for:

(a)an order for the return of the child to the country in which he or she habitually resided immediately before his or her removal or retention; or

(b)an order for the issue of a warrant for the apprehension or detention of the child authorising a person named or described in the warrant, with such assistance as is necessary and reasonable and if necessary and reasonable by force, to:

(i)stop, enter and search any vehicle, vessel or aircraft; or
(ii)enter and search premises; if the person reasonably believes that:
(iii)the child is in or on the vehicle, vessel, aircraft or premises, as the case may be; and
(iv)the entry and search is made in circumstances of such seriousness or urgency as to justify search and entry under the warrant; or

(c)an order directing that the child not to be removed from a place specified in the order and that members of the Australian Federal Police are to prevent removal of the child from that place; or

(d)an order requiring such arrangements to be made as are necessary for the purpose of placing the child with an appropriate person, institution or other body to secure the welfare of the child pending the determination of an application under regulation 13; or

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

The trial Judge concluded that Regulation 14 did not support the father’s contention in relation to the appropriateness of the request coming from the Central Authority for England and Wales.

Regulation 16 was regarded by the trial Judge as containing nothing which “...supports the restricted interpretation advanced on behalf of the father”. His Honour concluded that “Looking at the Regulations on their own, therefore, it seems to me that there is nothing to support the interpretation advanced by the father” (AB 16 paragraph 50).

Having referred to various Articles of the Convention, and authorities to which he was referred, the trial Judge concluded that “The restriction sought by the father does not find any sound basis in the wording of the Regulations, nor in my view does it find any sound basis in the Convention as read as a whole” (AB 18 paragraph 57). Further, the trial Judge said (AB 18 paragraph 58):
“The issue in this case in essence is whether further proceedings relating to this child should take place in Australia or the United Kingdom, they are the relevant countries. In my view it would be a clear violation of the spirit of the Convention if what I see as a technical argument were to succeed and thereby prevent the court from returning the child to the United Kingdom if the circumstances for doing so are otherwise established.”
It followed that his Honour did not regard the finding that “...the child was habitually resident in Scotland as distinct from England” as providing a basis for “...inhibition on my making an order for the return of the child, the relevant entity being United Kingdom and the child being habitually resident there immediately prior to the wrongful removal” (AB 18 paragraph 59). For similar reasons, the trial Judge rejected an “...alternative position advanced” on behalf of the father that the return of the child should be to the “...relevant territorial unit, namely Scotland”.

The third matter raised on behalf of the father before the trial Judge related to “...grave risk”.

His Honour referred to the relevant provisions of Regulation 16(3) which provides:
“A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:

(b)there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

His Honour also referred to a number of authorities relevant to the interpretation of the Regulations. In order to determine the merit of the “...grave risk” claim, the trial Judge reviewed the evidence before him. There is no suggestion before this Court that the trial Judge failed to have regard to any evidence relevant in that regard.

Before the trial Judge, the major thrust of the “...grave risk” claim made on behalf of the husband related to the character of GW. Evidence from a number of witnesses shed light on that topic.

The trial Judge considered the evidence of CG (hereinafter referred to as “CG”) who “...had a relationship with Mr W (GW) over a period of about three years, between 1989 and 1992” during which period Ms G (CG) and Mr W (GW) each had three children under ten (AB 19 paragraph 66). His Honour referred to the allegations of Ms G (CG) including a statement in her affidavit that “As far as children go, I suppose I don’t have anything to say” (AB 20 paragraph 66). The conclusion of the trial Judge in relation to the affidavit of CG was that it was “...of no assistance and it is drafted in a way which would make it quite unsafe for the Court to rely on it” (AB 20 paragraph 67).

Reference was then made to the evidence of P W (hereinafter referred to as “PW”) who married Mr W (GW) in 1978. PW was the mother of the three children of GW referred to in the evidence of CG. PW and GW separated in 1988. PW’s evidence alleged “...a pattern of violence by Mr W (GW) against her. The allegations are often vague but apparently serious” (AB 20 paragraph 69). The trial Judge’s view was that “...the vast majority of this material which relates to GW’s behaviour towards PW is of little, if any, relevance to the present application” (AB 20 paragraph 71). His Honour considered PW’s evidence in relation to an incident “...in which Mr W (GW) is said to have hit J who was then aged 11” (AB 21 paragraph 72) to be relevant to the issue. Departmental files in relation to that incident were examined by the trial Judge. A tape recording, some of which was “indistinct” was listened to by his Honour. Allegations by PW that GW “...would belt and flog the children as they got older” were discussed by the trial Judge (AB 21 paragraph 72). His Honour’s conclusion in relation to GW’s denials was that:
“It is true that in many ways he (GW) was not a very impressive witness. It is also true that he gave blanket denials of any misconduct in relation to the children, whereas there is substantial independent evidence that suggests that he had engaged in at least some violent behaviour towards the children. To that extent I do not accept his evidence, and his denial of those matters is a matter which it is necessary to take into account in determining the extent of any risk that might flow from him to S (the child).” (AB 22 paragraph 79).
GW had been cross-examined by telephone in the proceedings before the trial Judge (AB 22 paragraph 77).

The trial Judge referred to the mother’s evidence, particularly in the context of the allegations levelled at GW. The mother was able to shed little useful light on GW’s conduct prior to her meeting him.

Affidavits were filed by JW (hereinafter referred to as “JW”), LW (hereinafter referred to as “LW”) and SW (hereinafter referred to as “SW”), the three children of GW. Those affidavits were generally exculpatory of GW. The trial Judge rejected the affidavit of JW, who was 15 years of age, pursuant to the provisions of Order 23 Rule 5(6) of the Family Law Rules. LW, 19, and SW, 21, each denied having experienced or witnessed sexually inappropriate or violent behaviour on the part of their father, as well as giving evidence of positive aspects of his character. From the documents before him, the trial Judge concluded “...that the W’s (the family of GW) were a conflict-ridden family whose problems brought it to the notice of the authorities from time to time” (AB 23 paragraph 87). Ultimately, his Honour concluded that the material “...does provide some cause for concern, and as I have said it is inconsistent with Mr W’s (GW) flat denial of any physical abuse of the children. On the other hand the pattern seems to be of loss of temper and some rough behaviour rather than systematic abuse” (AB 24 paragraph 88).

Reference was made by the trial Judge to the “...relationship between the mother and Mr W (GW)”, who concluded that “It is clear that they have either planned to marry or discussed marriage in the past. It is also clear that both are interested in continuing the relationship. They have lived together when the mother has been in Australia” (AB 24 paragraph 91). The trial Judge further concluded, in relation to GW, that “...the evidence of Mr W’s (GW) behaviour in the past is not impressive. He has behaved badly and violently towards the children at some points. However, their evidence indicates that even so it has not been such as to damage their relationship. There’s been some suggestion that they are fearful of Mr W (GW) but I can find no basis for that especially in the case of the older two children, one of whom I note is living away from home” (AB 25 paragraph 93).

The “...critical matter” was identified as being “...whether return of the child to the United Kingdom would expose her to grave risk” (AB 25 paragraph 96). The submissions made on behalf of the father were then referred to. Those submissions included the assertion that “...‘Mr W (GW) is a violent man who poses as a grave danger to the child’” (AB 26 paragraph 97), his Honour’s conclusion in that regard being that “...at its worst, the evidence does not go beyond a proposition that Mr W (GW) is a man who is capable of behaving violently at times and in my view, on any view the evidence does not support the strong statement that he is ‘a violent man’” (AB 26 paragraph 98).

The suggestion that the mother “...does not appear prepared to entertain the slightest reservation or concern about Mr W (GW) and she is clearly under his influence” was rejected by his Honour although his Honour found that the mother was “...contemplating the possibility of marrying him and has lived with him at times” (AB 26 paragraph 29).

The trial Judge found that the mother was “...very confident about Mr W (GW) and she has not been enthusiastic about taking the opportunity to explore the allegations against him in detail to the extent that she has been unwilling or uninterested in looking at material from the Department, that being of an independent nature”, and concluded that this provided “...some ground for caution” (AB 26 paragraph 100).

Reference was then made to the submissions on behalf of the father in support of the contention that it would not be “...reasonably practicable to adduce evidence concerning Mr W (GW) before the United Kingdom court” (AB 26 paragraph 101) and that, accordingly, the welfare of the child could be gravely at risk. His Honour regarded as not having “...a great deal of force” the arguments raised in that context.

Ultimately, the trial Judge concluded in relation to the father’s submissions regarding “...grave risk” that the “...matters of greatest relevance” were the “...earlier behaviour of Mr W (GW), and particularly his denial of it” which provided “...a reason for a degree of concern and caution” (AB 28 paragraph 107). Other matters relied upon on behalf of the father in that context were referred to by the trial Judge, his conclusion being that “...the matters raised by the father do suggest a degree of concern but fall far short of the grave risk required by regulation 16. I am therefore not satisfied that ordering a return of the child would expose the child to any significant risk, let alone the grave risk referred to in the regulation” (AB 28 paragraph 108).

THE GROUNDS OF APPEAL

Grounds 1 and 2 of the father’s Notice of Appeal, which were argued together, provided:
“1.That His Honour erred in law in failing to deal with the argument advanced by the Appellant that the proceedings were defective in that the applicant Central Authority for England and Wales had no standing to bring the proceedings because the appropriate applicant was the Central Authority for Scotland.
2.In the alternative to ground 1 above His Honour erred in law in that having found that the child S was habitually resident in Scotland. His Honour erred in finding that he could not permit a technical argument to prevent him from ordering the return of the child if the circumstances would otherwise warrant it.”
The trial Judge had found that the child was “...habitually resident” in Scotland at the relevant time which was, pursuant to Regulation 4, the time at which the child was removed from the United Kingdom. Reliance was placed upon there having been “...two relevant legal regimes in the United Kingdom, namely in respect of England and Wales and in respect of Scotland and two relevant central authorities” (Outline of Submissions on behalf of the father page 6 paragraph 3.1.2).

It was submitted that the trial Judge erred in law when stating “It is a false move to lift a definition from the Convention and seek in effect to read it into the Regulations”. It had been submitted on behalf of the father that Article 31 of the Convention had to be “...read into” the Regulations, and that the Regulations were “...subservient to, and to give effect to, the provisions of the Convention”. It was thus submitted that, for the Central Authority in Australia to validly act on a request, the request had to be an application under the law of Scotland by virtue of the provisions of Article 31. The child having been found to have been habitually resident in Scotland at the time of her removal, it was thus submitted that the Central Authority for England and Wales could not make a valid request to the Central Authority in Australia to commence proceedings.

The further submission, made on behalf of the father, was that, if the primary submission to which we have referred was “...good in law, be it technical or otherwise, it should succeed” (Outline of Submissions on behalf of the father page 7 paragraph 3.1.7). There is substance in this contention. In our view, either the Central Authority in Australia was entitled to act on the request or it was not. If, as a matter of construction of the Convention as incorporated into the laws of Australia, the Central Authority was not entitled to act on the request from the Central Authority for England and Wales, then the orders made by the trial Judge would be liable to be set aside. Before that stage could be reached, however, it is necessary to consider whether the primary submission on behalf of the father has merit.

Counsel for the Central Authority submitted that there was “...no restriction on who may apply to the Australian Cental Authority for return of a child, provided that whoever applies is a ‘person, institution or other body’” (Respondent's Summary of Argument page 4 paragraph 12). Reference was made in that regard to Article 8 of the Convention which provides:
“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.”

It was further submitted on behalf of the Central Authority, in reliance upon the terms of Regulation 13(1), that it was thus “...irrelevant by whom the application to the Commonwealth Central Authority for return of the child was made, provided that the Commonwealth Central Authority is satisfied that the application is in accordance with the Convention and the Regulations” (Respondent's Summary of Argument page 4 paragraph 15). There is no issue that the Commonwealth Central Authority was so satisfied.

Regulation 13 provides:
“(1) If the Commonwealth Central Authority:

(a)receives an application in relation to a child who has been removed from a convention country to, or retained in, Australia; and

(b)is satisfied that the application is in accordance with the Convention and with these Regulations; the Commonwealth Central Authority must take action under the Convention to secure the return of the child to the country in which he or she habitually resided immediately before his or her removal or retention.

(2)The Commonwealth Central Authority may refuse to accept an application received by it if it is satisfied that the application is not in accordance with the Convention.”

It was submitted that there could be no suggestion that the Central Authority of England and Wales was not “...an institution or other body claiming that a child has been removed or retained in breach of custody rights” which had applied to the Central Authority “...for assistance in securing the return of the child” (Respondent's Summary of Argument page 5 paragraph 18).

Counsel for the Central Authority submitted that the “habitual residence” of the child was not relevant to the question of who may apply to the Australian Central Authority for the return of a child but rather to the determination of whether a person had “...rights of custody”. Regulation 4(1) provides:
“For the purposes of these Regulations, a person, an institution or another body has rights of custody in relation to a child, if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention.”

It was submitted that “habitual residence” was also relevant to determining the place to which the child was to be returned, having regard to the provisions of Regulation 13(1) (Respondent's Summary of Argument page 5 paragraph 20). Counsel for the Central Authority relied upon the fact that the United Kingdom, and not Scotland, is the signatory to the Convention (Respondent's Summary of Argument page 6 paragraph 23). The United Kingdom was formed when Scotland was united with England and Wales by the Union of Scotland Act 1706.

In our view, the trial Judge did not err in holding that the Cental Authority in Australia was entitled to commence proceedings for the return of the child to the United Kingdom pursuant to the request made by the Central Authority of England and Wales. We do not accept, as a matter of construction, that the Regulations must necessarily be read subject to the provisions of the Convention or, as was submitted on behalf of the father, by “...reading into” the Regulations, the provisions of the Convention. The Commonwealth of Australia becoming a Signatory to the Convention did not of itself render the Convention part of the laws of Australia. By virtue of s.111B(1) of the Family Law Act, the Regulations were made in order to “...enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention”. The Regulations contain the provisions of the Convention which are law in this country, and only those provisions. The legislative intention must have been that provisions of the Convention not appearing in the Regulations do not form part of the laws of Australia.

We are not persuaded that the approach of the trial Judge was erroneous, even if, contrary to our view, the provisions of the Convention are to be “...read into” the Regulations. The threshold question in proceedings under the Regulations for the return of a child is whether the child has been (in this case) removed in breach of “...rights of custody”. It is necessary in those circumstances to determine whether a child has been removed in breach “...of custody rights” according to the law of the place where the child was “...habitually resident” at the time of removal from that place. The logic of this provision is transparent. We do not perceive that “reading” this Article into the Regulations advances the father’s case.

The “...habitual place of residence” is relevant to the place of return of the child once an order is made under the Regulations.

There is a logic in returning a child to the place of habitual residence given that the threshold for making such order derives from a consideration of the existence or otherwise of custody rights pursuant to the laws of the place of habitual residence. Nothing in Regulation 14(1)(a), to which we have been referred, advances the father’s contention that the Central Authority for England and Wales could not validly request the Central Authority in Australia to take proceedings under the Regulation for the return of the child.

The effect of Article 31, asserted on behalf of the father, is inconsistent with the terms of Article 9 which provides that “Any person, institution or body” may apply to the Central Authority of “...the child’s habitual residence or to the Central Authority of any other contracting state for assistance in securing the return of the child”. The intention seems, sensibly, to be that standing to apply to the Central Authority of “...any other contracting state” for assistance in securing the return of the child is subservient to the objects or purposes of making a request “for assistance”. The Convention, and the Regulations, clearly contemplate that an almost unlimited range of individuals and institutions and entities may seek to have the Central Authority commence proceedings. It is clear from the terms of Regulation 13 that the Central Authority, once a request is made, must take action under the Convention to seek the return of the child once it is satisfied that the provisions of Regulation 13(1)(b) apply.

The possibility of proceedings being commenced by a Central Authority in circumstances where such action should not be commenced is thus guarded against.

If Article 31 of the Convention may be read into the Regulations, then so may Article 8 and other Articles in the Convention. In our view, Article 31 does not purport to limit the scope of Article 8. Reading Article 8 into the Regulations serves only to support the conclusion that the intention of our legislature was to enable a wide range of individuals and entities to apply for assistance under the Regulations and does not limit the operation of Regulation 13(1). Article 31 finds expression in Regulations 4(1) and 14(1)(b). Article 31, as appearing in the Regulations, is directed to quite different issues to those addressed by Article 8 as it appears in the Regulations. The Regulations to which we have referred are directed to different issues. No inconsistency results from this construction of the Regulations and the provisions of the Convention.

We do not regard Grounds 1 and 2 as having merit.

Ground 3 provided:
“3.That His Honour erred in law in concluding that the provisions of Regulation 13(4) had no connection with the powers of the Court to order the return of the child in circumstances where the Respondent Director General had failed to comply with such Regulation.”
It was submitted on behalf of the father that “...unless Regulation 13(4) has force and effect, it is meaningless” (Outline of Submissions on behalf of the father page 7 paragraph 3.2.2). Counsel for the father submitted that compliance with the terms of Regulation 13(4) was a “...condition precedent to a successful application” (Outline of Submissions on behalf of the father page 7 paragraph 3.2.2). Regulation 13(4) provides:
“For the purposes of subregulation (1), action that must be taken by the Commonwealth Central Authority includes seeking:

(a)an amicable resolution of the differences between the applicant and the person opposing return of the child in relation to the removal or retention of the child; and

(b) the voluntary return of the child; and

(c)an order under Part 3.”

Counsel for the father submitted that Regulation 13(4) could be complied with at any time prior to the making of an order. Compliance with Regulation 13(4)(a) and (b) was said not to be “...a condition precedent” to commencing an application. Inferentially, counsel suggested that the Court had power to hear an application prior to compliance with the provisions of Regulation 13(4)(a) and (b), but could not make an order under Part 3 until those provisions had been complied with.

It was submitted on behalf of the Central Authority that “...the use of the ‘includes’ is significant” and that “The only sensible interpretation of this regulation is that the Central Authority must take action to secure the return of the child but has a discretion as to the method used. The Central Authority is not obliged to take all of the options referred to in that regulation. Indeed, on one reading of the Regulation, each of the options referred to in Regulation 13(4) conflicts with the others” (Respondent's Summary of Argument page 8 paragraph 30). In the course of her written submissions, counsel for the Central Authority referred to a number of matters which would be compelling if compliance with some or all of the provisions of Regulation 13(4) was a matter of discretion on the part of the Central Authority. If compliance was compulsory, and the contention of counsel for the father is correct, the matters referred to in submissions on behalf of the Central Authority could not, in our view, operate to overcome that difficulty however compelling they might be. It is necessary to consider the proper construction of Regulation 13(4).

The case for the father is, in essence, that, unless the construction of Regulation 13(4) urged upon us by his counsel be adopted, the provisions of Regulation 13(4)(a) and 13(4)(b) are potentially meaningless. It was submitted that the word “...must” should be given its usual and normal meaning.

Nothing in Regulation 13 indicates the consequences, if any, of the Central Authority failing “...to take action” in accordance with Regulation 13(4)(a) or (b). No other Regulation to which we have been referred, makes clear the consequences, if any, of such failure. It was submitted on behalf of the Central Authority that the absence of any invalidating provision in Regulation 16 signifies a legislative intention that failure to comply with the terms of Regulation 13(4) does not invalidate any order made pursuant to Regulation 13(4)(c). Regulation 16(1) provides that, subject to Regulation 16(2) and Regulation 16(3), the Court “...must make an order for the return of a child” if it is satisfied that an order for return, or recovery, of the child should be made. Regulation 16(2) contains the five grounds on which a court “...must refuse to make an order” under Regulation 16(1). None of those provisions is able to be construed as resulting from a failure to comply with the requirements of Regulation 13(4).

Regulation 16(3) prescribes the circumstances in which a court “...may refuse to make an order” under Regulation 16(1). None of the matters there referred to contemplates a failure to observe the requirements of Regulation 13(4). It is thus arguable that the absence of a provision that a failure to comply with Regulation 13(4) either obliges a court to refuse to make an order or provides a discretionary basis for doing so evidences a legislative intention that such a failure does not have either of those consequences. There is logic in this submission, particularly given the nature of the Regulations and the Convention itself. Such a construction would, as the facts of this case graphically illustrate, be consistent with the objectives of the Regulations and the Convention. The construction for which the father contends would not be consistent with the nature or intention of the Regulations and would, as this case demonstrates, create the potential for the operation of the Regulations to be defeated in circumstances where an order for return ought to be made.

The authors of Halsbury’s Laws of Australia at paragraph 385-145 suggest:
“The function of the court is to construe, by the application of accepted canons of construction, the intention of the legislature through the words used in a statute. This literal approach has been described as the fundamental rule of interpretation to which all others are subordinate. With the adoption of such an approach to interpretation, the rejection of the grammatical sense is only permitted if the results lead to an absurdity or inconsistency. Whilst the literal interpretation of the words has at times been expressed in the past more absolutely than in recent times, the more recent approach has been for the courts to ascertain the intention of the legislature through the object or purpose underlying the legislation and to ascertain the meaning of the words in light of that object or purpose. Such an approach consequently allows the court far more latitude in departing from the literal or grammatical meaning and extends to any situation where the literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy that may be discerned from those provisions. Such an approach has also been supported by legislative provisions in most Australian jurisdictions.”

The learned authors of Maxwell on Interpretation of Statutes, 11^th Edition, 1962 at page 364 suggest:
“Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to other who have no control over those exercising the duty would result if such requirements were essential and imperative.”

In Victoria v The Commonwealth and Connor (1975) 134 CLR at 179, Stephen J said:
“39. A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognizes that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far-reaching and undesirable consequences of treating its non-observance as invalidatory.
40. Where, on the contrary, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may none the less be given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute.”
In Tasker v Fullwood (1978) 1 NSWLR 20, it was held by the Court of Appeal of New South Wales that:
“…we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty. Ltd. case (1977) 2 NSW LR 955, at pp 963 et seq. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont (1977) 2 NSW LR 211, at p 220. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v. The Commonwealth (1975) 134 CLR 81, at pp 179, 180. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated; the Franklins Stores Pty. Ltd. case (1977) 2 NSW LR 955, at pp 965 et seq. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v. The Commonwealth (1975) 134 CLR 81, at pp 118, 162, 179, 180.”
A contrary view was expressed by Batt J in Re Dalton (1995) 120 FLR 408:
“Section 86(2) uses the word "must". For the reasons which I gave in Keller v Bayside City Council (1995) 8 VAR 377 [(1996) 1 VR 357] the word "must" is, in my view, the word of the most insistent obligation in the English language, and is, if anything, stronger than the word "shall". Furthermore, because the requirement in a 86(2) is a requirement relating to the commencement of a new proceeding and not the taking of a step in the course of a proceeding already instituted, I consider, for the reasons which I also expressed in Keller v Bayside City Council, that it must be read as mandatory and that it is not possible to read it as directory only or to have the doctrine of substantial performance apply to it.”
We glean from these authorities that ultimately, the Court is to determine the intention of the legislature by examining the language of the relevant provision and the scope and object of the whole statute. We have referred above to the language of the Regulation 13(4) and to other Regulations, none of which evidences an intention that, though “directory”, failure to comply with Regulation 13(4)(a) or 13(4)(b) invalidates any order made under Regulation 13(4)(c). This construction is not inconsistent with the “substantial compliance” test referred to by Stephen J in Victoria v The Commonwealth and Connor (supra), nor does it condone a “non observance” which cannot be sought to be excused “on general object” grounds as explained by his Honour (page 170). On the basis of this analysis, we are unable to accept the proposition that, as a matter of construction, the power conferred by the Regulations to make an order for return of a child is conditional upon Regulations 13(4)(a) and (b) having been complied with prior to the making of an order for return of a child. It is clear from the terms of Regulation 16 that an order must be refused only in the circumstances there prescribed. It is clear from the terms of Regulation 16(3) that a court may nevertheless order the return of a child notwithstanding that one of the matters referred to in Regulation 16(3) has been established. In our view, to interpret compliance with Regulation 13(4)(a) and (b) as necessary prerequisites to a valid order under Regulation 13(4)(c) would be inconsistent with the clear intent of Regulation 16(3) that a child will only not be returned in the circumstances there provided. Notwithstanding the provisions of Regulation 16(3), the Court is not obliged to refuse to make an order for the return of that child. Where the intention of the legislation is so clearly in favour of orders being made for the return of children in respect of whom the provisions of the Convention are attracted, the construction of Regulation 13(4), for which the father contends, would, if correct, be inconsistent with the clear effect and intention of the provisions of the Regulations to which we have referred.

Section 46(1)(a) of the Acts Interpretation Act provides:
“Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:
(a)unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act.”
The Regulations were made pursuant to s.111B of the Family Law Act. By virtue of s.46(1)(a) the provisions of the Acts Interpretation Act apply to the Regulations.

Counsel for the Central Authority asserted in her oral submissions that Section 15AA of the Acts Interpretation Act 1901 (Cth) could be invoked in aid of the construction of Regulation 13(4) advanced by the Central Authority. Section 15AA(1) provides:
“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
The Regulations provide, for the purposes of Australian law, the jurisdictional basis for the operation of the Convention. The objects of the Convention are “...to secure the prompt return of children wrongly removed to or retained in any contracting state” and “...to ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states” (Convention Article 1).

The purpose or object of the Regulations, inter alia, is to enable Australian courts to carry out the obligations which the Commonwealth has accepted by becoming a signatory to the Convention (Section 111B, Family Law Act). Regulation 13 provides that the Central Authority “...must take action under the Convention to secure the return of the child to the country in which he or she habitually resided immediately before his or her removal or retention” upon receiving an application in relation to such child and being satisfied that the application “...is in accordance with the Convention and with these Regulations” (Regulation 13).

There is little scope for uncertainty that the purpose or object of the Regulations is to secure, in a case such as this, the expeditious return of a child unlawfully removed from a contracting state to that contracting state.

The construction of Regulation 13(4), for which the father contends, would, if correct, operate to defeat the operation of the Convention in cases such as the present. There has been no challenge before us to the trial Judge’s findings in relation to the unlawful removal of the child from the place where she was habitually resident. To allow the failure of the Central Authority to take steps pursuant to Regulation 13(4) which were highly unlikely, if not certain, to be a waste of time would be inconsistent with the purpose or object of the legislation. We have not been referred to any evidence to suggest that the father was ever likely to consent to, or cooperate with, the voluntary return of the child to the place where she was habitually resident. To attempt to comply with Regulation 13(4)(a) or (b) prior to an order being made may well, on the evidence, have been to provide the father with the opportunity to again unlawfully remove the child. In our view, to conclude that a failure to comply with Regulation 13(4)(a) and (b) does not invalidate an order made under Regulation 13(4)(c) is a construction which promotes the purpose or object underlying the Regulations. The construction asserted on behalf of the father would not promote that purpose or object and would operate to defeat or frustrate that purpose or object in this case..

Section 15AB(1) of the Acts Interpretation Act provides:
“Subject to submitted-section (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)to determine the meaning of the provision when:

(i)the provision is ambiguous or obscure; or

(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.”

To ascribe to Regulation 13(4) the meaning ordinarily conveyed by its text would, in our view, lead to a result that is “...manifestly absurd or is unreasonable” in a case such as the present. By deception, and in clear breach of court orders, the father removed the child from the United Kingdom and brought her to Australia where he sought to keep her whereabouts secret whilst he endeavoured to gather evidence against the mother. At no time did the father give the slightest indication that he was interested in or willing to attempt to secure the return of the child to the United Kingdom voluntarily or otherwise procure an “...amicable resolution of the differences” between himself and the Central Authority or himself and the mother. In those circumstances, it would in our view be manifestly absurd or unreasonable to construe the Regulations as obliging the Central Authority to refrain from securing an order for the return of the child until the provisions of Regulation 13(4)(a) and (b) had been complied with in the absence of any clear requirement to that effect, particularly as doing so may well only have served to provide the father with an opportunity to again abscond with the child.

The term “mediation” was used by counsel for the father during the course of his submissions. Regulation 13(4) does not provide what form the attempts to secure “...an amicable resolution” must take. Had the Central Authority written a letter inviting the father to attempt to reach “...an amicable resolution” and requested him to voluntarily return the child, the requirements of the Regulation would appear to have been met. This would be an absurd or unreasonable result. Whilst it has not been submitted that compliance with Regulation 13(4)(a) and (b) was a prerequisite to the commencement of an action for the return of the child, it seems to us that, as the Regulation gives no indication in relation to the time within, or sequence by, which compliance is to be effected, it cannot be assumed that there was any particular time prior to the making of an order for the return of the child during which compliance with Regulation 13(4)(a) or (b) had to be achieved. It would be plainly absurd to require the Central Authority to seek to comply with Regulations 13(4)(a) and 13(4)(b) prior to commencing proceedings for the return of a child in circumstances such as the present for reasons we have earlier stated.

In our view, the ordinary meaning conveyed by the text of Regulation 13(4) for which the father contends would, taking into account its context in the Regulations and the purpose or object underlying the Regulations, lead to “...a result that is manifestly absurd or is unreasonable”. The effect of the Regulation asserted by the Central Authority does not produce either of those results. This is a further reason for preferring the contention of the Central Authority as to the correct operation of the Regulation rather than that asserted on behalf of the father.

The language of Regulation 13(4) and the scope and object of the scheme created by the Regulations is, in our view, inconsistent with construing the power to make an order for the return of the child as being conditional upon the Central Authority having complied with Regulation 13(4)(a) and Regulation 13(4)(b) prior to making such order. We accordingly do not regard Ground 3 as having substance.

Ground 4 provided:
“4.That His Honour erred in law by finding that there was no grave risk posed to the child S by being returned to England or Scotland and by being in contact with G (sic) W particularly in view of His Honour’s findings that:-
(a)The evidence of GW was unsatisfactory particularly in light of his blanket denials of violence; and
(b)The finding that there is a strong likelihood that the mother and GW will marry and live together (presumably in Queensland); and
(c)The finding that the return of the child to the mother would likely mean that S (the child) would come into contact with Mr W (GW).”
It was submitted on behalf of the father that GW’s denials of violence towards children other than the child the subject of the proceedings before the trial Judge, was unable to be accepted “...on the basis of independent evidence” (Outline of Submissions on behalf of the father page 8 paragraph 3.3.1). We were referred to the trial Judge’s findings in reliance upon material tendered in evidence before the trial Judge from the Queensland Department of Youth and Community Care which indicated the family of GW to be “...a conflict-ridden family whose problems had brought them to the notice of authorities from time to time” (AB 23 paragraph 87).

The trial Judge found that it was likely that at some time the mother would live with GW in Australia (AB 25 paragraph 22). His Honour referred to the mother’s unwillingness to countenance any significant complaint about GW. We have referred earlier to the trial Judge’s findings in relation to GW and the issue of the risk of harm, or abuse, to the child by virtue of GW’s alleged propensity to violence. The trial Judge reviewed the evidence before him. It has not been suggested to us that any finding of fact made by his Honour was not open to him, or that any additional findings of fact should have been made by the trial Judge. The issue thus becomes one of the weight appropriate to be attached to the facts as found by the trial Judge. The approach of appellate courts to appeals based upon challenges to the weight given to findings of fact made by trial Judges in the exercise of their discretion is clear. In Gronow v Gronow (1979) 144 CLR 490 at 519 Stephen J said:

“ The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.”

The trial Judge said of GW that (AB 22 paragraph 79):
“...in many ways he was not a very impressive witness. It is also true that he gave blanket denials of any misconduct in relation to the children, whereas there is substantial independent evidence that suggests that he had engaged in at least some violent behaviour towards the children. To that extent I do not accept his evidence, and his denial of those matters is a matter which it is necessary to take into account in determining the extent of any risk that might flow from him to S (the child).”

Further his Honour was “...satisfied that he was less than frank about some of the incidents relating to his behaviour with the children” (AB 22 paragraph 80). Having referred to the material produced by the Queensland Department of Youth and Community Child Care the trial Judge found that such material provided “...some cause for concern, and as I have said it is inconsistent with GW’s flat denial of any physical abuse of the children. On the other hand the pattern seems to be of loss of temper and some rough behaviour rather than systematic abuse” (AB 24 paragraph 88).

His Honour further observed (AB 25 paragraph 93) that:
“...the evidence of Mr W’s (GW) behaviour in the past is not impressive. He has behaved badly and violently towards the children at some points. However, their evidence indicates that even so it has not been such as to damage their relationship. There’s been some suggestion that they are fearful of Mr W (GW) but I can find no basis for that especially in the case of the older two children, one of whom I note is living away from home.”
Later, the trial Judge recorded that (AB 26 paragraph 98):

“It seems to me however that at its worst, the evidence does not go beyond a proposition that Mr W (GW) is a man who is capable of behaving violently at times and in my view, on any view the evidence does not support the strong statement that he is ‘a violent man’.”

So far as the mother’s unpreparedness to “...entertain the slightest reservation or concern about Mr W (GW)” and her being “...under his influence” were concerned, his Honour found that “Having heard the mother in the witness box, I see no basis for concluding that she is under his influence, although clearly she is contemplating the possibility of marrying him and has lived with him at times” (AB 26 paragraph 99). His Honour then recorded (AB 26 paragraph 100):
“The other matter referred to there has some substance. It seems to me that the mother’s evidence shows that she is indeed very confident about Mr W (GW) and she has not been enthusiastic about taking the opportunity to explore the allegations against him in detail to the extent that she has been unwilling or uninterested in looking at material from the Department, that being of an independent nature, it seems tome that this does provide some ground for caution. On the other hand, it is understandable, the mother having lived with Mr W (GW) and his children for significant periods of time, that she would prefer to rely on her judgment and her personal knowledge of him rather than material about his conduct with other people on other occasions.”

The trial Judge further found in relation to the mother that (AB 27 paragraph 106):
“...I was impressed by the mother’s evidence and in particular by her evident concern for S’s (the child’s) welfare. Although she may have been unwise in not examining the documentary evidence relating to Mr W (GW) in more detail, in my view it is not unreasonable for her to rely on her own personal experience. I accept her evidence to the effect that she would certainly take appropriate action if anything happens to give her any cause for concern about S’s (the child’s) welfare.”

In coming to a final conclusion, in relation to the “...grave risk” allegations raised by the father, the trial Judge recorded (AB 27 paragraph 107):
“Summing up, therefore, I consider whether making the orders sought by the Central Authority would expose the child to the grave risk referred to in paragraph (b) of regulation 16(3). The matters of greatest relevance are as follows: the earlier behaviour of Mr W (GW), and particularly his denial of it, does provide a reason for a degree of concern and caution. However there is no evidence of any abuse by Mr W (GW) of small children, as distinct from older children; there is no evidence of any sexual abuse of any children. I am impressed by the supportive evidence from his own two older children, although I take into account that there has been no opportunity for them to be cross-examined. I am impressed by the mother’s evident concern about S’s (the child's) welfare and I take into account the capacities of courts and authorities in the United Kingdom to provide whatever protection is needed and to make decisions based on the evidence. I take into account the evidentiary difficulties referred to but I do not regard those as of overwhelming importance.”

His Honour’s ultimate conclusion was (AB 28 paragraph 108):

“Having regard to all the evidence and in particular to these matters, it seems to me that in the end the matters raised by the father do suggest a degree of concern but fall far short of the grave risk required by regulation 16. I am therefore not satisfied that ordering a return of the child would expose the child to any significant risk, let alone the grave risk referred to in the regulation.”

We were referred by counsel for the father to the judgment of Barry J of 16 September 1999, to the affidavit of the mother’s solicitor, Mr Barry Boyd of 14 September 1999 and to the documents attached to the father’s answer and cross application filed on 29 February 2000 which did not appear in the appeal books as published. The Court allowed time for these documents to be perused by counsel for the father. We have read that material which was before the trial Judge. Nothing in that material invalidates any finding of fact made by the trial Judge or renders any conclusion reached by the trial Judge in reliance upon such findings of fact to have been other than open to his Honour. It was not submitted on behalf of the father that such was the effect of any of such material.

In our view, the findings of fact relied upon by the trial Judge not being the subject of challenge, it has not been established that the conclusions reached by the trial Judge fell outside the ambit of a reasonable exercise of his discretion by virtue of his having given excessive or insufficient weight to any fact relevant to that exercise of discretion. The contentions on behalf of the father in relation to “...grave risk” of actual physical harm or abuse at GW’s hands accordingly lack merit.

The further submission on behalf of the father in relation to “...grave risk” was that there was such a risk “...in circumstances where it will not be possible to bring before a court in England relevant evidence which goes further than merely to the general welfare of the child, but rather to her safety” (Outline of Submissions on behalf of the father page 9 paragraph 3.3.5). The submission of Senior Counsel appearing for the father at trial was relied upon in that respect. It was submitted on behalf of the father at trial (AB 442 lines 29-33):
“Your Honour, some of the material which arrived from England overnight is relevant to the question which your Honour asks and I’ve just shown my learned friend an extract from the Rules of the Supreme Court of the United Kingdom, and if I can just read the summary to your Honour and I will tender this so your Honour has some evidence.”
It was further submitted on behalf of the father (AB 442 lines 36-46 and AB 443 lines 1-4):
“The editorial introduction to order 39 of the Rules of the Supreme Court says:
A court may receive evidence in the form of depositions sworn by witnesses before trial...(reads)...to a judicial authority in another country for the examination of witnesses there and the rules govern that.
So the applicable procedure for the examination of witnesses here would be by letter of request. The letter of request procedure involves, in effect, the preparation of interrogatories in written form, their forwarding to a judicial authority in Australia from England and the administration of those interrogatories orally to the witness before the examining authority. That is not a substitute for the ability to examine the party or cross-examine the party oneself and ask questions that would---”

The trial Judge then asked “Would that process include cross-examination?” to which Senior Counsel for the father submitted (AB 443 lines 8-11):
“My understanding, your Honour, is not. The last time I did this was in connection with some proceedings in Italy, and although one could have a representative present, the representatives of the parties played no role except to observe and the examining authority asked the questions.”
It was further submitted on behalf of the father that (AB 443 lines 17-25):
“...the distinction is this, as I understand what those rules say, while evidence can be taken on commission within the jurisdiction, and that’s quite common place within Australia as well, evidence will be taken on commission and there is cross-examine – re-examination and cross-examination-in-chief and cross-examination and the like in that situation. My understanding of letters of request, and the last I looked at it in detail was when I wrote an article or part of an article in Butterworths Supreme Court Forms, is that in the administration of letters of request, there is no scope for examination and cross-examination and that’s just conducted by the judicial authority.”
The Full Court said in Gsponer v Director General, Dept. Community Services, Vic (1989) FLC 92-001 at page 77,160 :
“Once the child has been so returned, no doubt the appropriate court in that country will make whatever orders are then thought to be suitable for the future custody and general welfare of that child, including any interim orders......There is no reason why this Court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed the entry by Australia into this Convention with the other countries may justify the assumption that the Australian Government is satisfied to that effect.”
In Director General of Family and Community Services v. Davis (1990) FLC 92-182 at page 78,228 the Full Court said:
“...since the Convention is concerned with the allocation of judicial responsibility for determining issues regarding the welfare of the child, that issue, as the Full Court also pointed out in Gsponer is a matter for the appropriate court.”
As we apprehend it, the submission on behalf of the father in relation to the consequences of the father being obliged to litigate in relation to custody or residence of the child in the United Kingdom is that the courts in the United Kingdom would be unable to effectively protect the child from the risk of harm or abuse at the hands of GW or that, by virtue of the difficulties which would confront the father in litigating the issue of custody in the United Kingdom, the child would be at risk that orders might be made which were not necessarily in her best interests. The inability of the father to call Australian witnesses and to subpoena and tender Australian documents relevant to determining the risk to the child’s welfare represented by GW, was stressed by counsel for the father. The trial Judge considered the submission which is now thus made and said (AB 26 paragraph 101):
“The argument is that in an Australian court, Mrs W (GW) would be able to be subpoenaed but in the United Kingdom court this would not be possible. She would not give evidence voluntarily and therefore the English court would not have the opportunity to hear her evidence, and also perhaps, although Mrs W (PW) was the main focus of this, unable to have Mr W (GW) available.”

His Honour further said (AB 27 paragraph 102):
“I have taken these matters into account, but having regard to the nature of the evidence and in particular the fact that the most important evidence seems to be the objective evidence from the Departmental records, it seems to me that it is a matter that does not have a great deal of force.”

We have examined the English Rules to which counsel for the father referred. Without referring in detail to those Rules, it is evident that courts in the United Kingdom have provisions to facilitate the calling of evidence and testing of such evidence in circumstances such as are likely to arise if proceedings in relation to custody of or access to the child are heard by a court in the United Kingdom (see R.S.C. Orders 38 and 39).

We are not persuaded that the procedural difficulties asserted on behalf of the father can properly support a “...grave risk” finding within the terms of Regulation 16(3)(b). The authorities to which we have referred support such a conclusion, as does the wording of the Regulation itself. Moreover, the trial Judge, who was clearly alive to the issue raised by the father, considered the evidence and concluded that a grave risk required by Regulation 16 had not been established (AB 28 paragraph 108). His Honour considered the father’s arguments and said (AB 27 paragraph 105):
“The point that must be the subject of focus is of course whether making the orders sought by the Central Authority will or be likely to expose the child to the grave risk referred to in that subregulation. The question, as I remarked during the course of the hearing, is essentially a question of causation. The argument in a nutshell is that the child should not be returned to England because the English or Scottish courts, lacking the power to have Mrs W (PW) and perhaps Mr W (GW) brought to court under subpoena, might not be able to assess the extent of the risk to the children from Mr W (GW). However, the evidence from Mrs W (PW) and a great deal of other evidence has in fact been provided to this court in this case and I am in a position to assess for myself the extent of the risk.”
In our view, the second limb of the father’s contentions pursuant to this Ground lacks merit. We doubt whether the procedural difficulties asserted on behalf of the father are capable of constituting “grave risk” within Regulation 16(3)(b). In any event, we are not persuaded that the procedural difficulties confronting the father in the United Kingdom would be likely to result in a court in the United Kingdom failing to make orders which operated to protect the child from “...physical or psychological harm or otherwise place the child in an intolerable situation”. The Rules to which we have referred, the ability of courts to draw inferences adverse to a party failing to call evidence which it reasonably ought to have (such as Jones v Dunkel (1959) 101 CLR 298), the ability through technological advances to receive evidence and hear cross-examination of witnesses who are overseas or, if circumstances warrant, have evidence and cross-examination taken on commission, combine to render it highly improbable that a court hearing proceedings between the mother and father in relation to the child would have other than sufficient relevant evidence before it to make orders consistent with her best interests. We are unable to accept that all of the evidence referred to by counsel for the father would not be able to be brought before a court in the United Kingdom. We are thus not persuaded, even if the operation of Regulation 16(3)(b) is as broad as counsel for the father asserted, that the father has made out this aspect of the Ground.

CONCLUSION

None of the Grounds of Appeal having found favour with this Court, the appeal will be dismissed.

Having dismissed the appeal, it is unnecessary to traverse the submissions made on behalf of the father under the heading “THE STAY AND EXPEDITION OF THE EXISTING AUSTRALIAN PROCEEDINGS” (Outline of Submissions on behalf of the father page 9 paragraph 5).

COSTS

The Central Authority sought an order for costs against the father in the event of the father’s appeal being dismissed. Costs substantially in excess of those commonly awarded by this Court on the hearing of one day appeals were sought. The Central Authority’s costs included costs incurred in obtaining the transcript and preparing the appeal books ($4,500). The father’s alleged inability to afford to discharge his obligations in relation to those matters created that state of affairs.

In opposing any order for costs in the event of the appeal being dismissed, counsel for the father relied essentially on the financial circumstances of his client. The Court was informed by counsel for the father that the father’s assets comprised goods, shares and personal property located in the United Kingdom and valued at about œ60,000 (Sterling), a life interest in property in the United Kingdom worth approximately œ1,000,000 (Sterling) and liquid assets or funds not exceeding $20,000. The father was said to have substantial debts, actual and contingent, and was liable to pay $139 per day whilst held in a detention centre by immigration authorities. It was ultimately unclear as to whether or not the father claimed to be indigent.

It is common ground that the provisions of s.117(2A) of the Family Law Act govern the question of the costs of the appeal. To make an order, the Court must be satisfied that circumstances exist which justify such an order having regard to the matters referred to in s.117(2A) of the Family Law Act.

The Court is obliged to consider the financial circumstances of each of the parties to the proceedings under s.117(2A)(a). We have referred to the details of the father’s financial circumstances as they were indicated to the Court by his counsel. The Central Authority is publicly funded. Although the Central Authority’s financial position may be superior to that of the father, we would not decline to make an order for costs against the father in this case if the circumstances justified such an order by virtue of that factor.

We are unaware as to either party being in receipt of assistance by way of legal aid, but would not, in the circumstances of this appeal, regard that as significant, regardless of which party was in receipt of legal aid, or the terms of the grant of such assistance to that party.

The proceedings arose by virtue of the father having removed the child from the United Kingdom in breach of court orders, in circumstances involving deception and illegality in terms of immigration laws. The proceedings before the trial Judge and on appeal arose solely because of the conduct of the father. Section 117(2A)(c) thus supports the Central Authority’s claim for costs against the father.

The father’s failure to comply with a court order necessitated the proceedings before the trial Judge. We regard this as relevant for the purposes of s.117(2A). Similarly, the fact that the father has been “...wholly unsuccessful” in the proceedings is, in our view, relevant. In our view, the matters to which we have referred provide ample basis for finding that circumstances exist by reason of which the father should pay the Central Authority’s costs of the appeal.

We have some difficulty determining the proper quantum of the costs which ought be payable by the father. Whilst the costs of preparing appeal books clearly should be paid by the father, we would not be prepared to accept that counsel’s fees and solicitor’s fees of the magnitude claimed would necessarily be properly payable. We lack the evidence to attempt to, in effect, tax the costs properly payable. In the absence of agreement in relation to such matters, the preferable order is that the father pay the Central Authority’s costs of the appeal as agreed or taxed.

The Orders of the Court are accordingly as follows:

That the appeal be dismissed.
That the father pay the costs of the Central Authority of and incidental to the appeal as agreed or taxed in accordance with the relevant scale of fees.

I certify that the preceding
123 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate

[2000] FamCA 673

26 May 2000