Northern Territory Central Authority and Gambini
[2008] FamCA 544
•9 May 2008
FAMILY COURT OF AUSTRALIA
| NORTHERN TERRITORY CENTRAL AUTHORITY & GAMBINI | [2008] FamCA 544 |
| FAMILY LAW - CHILD ABDUCTION – Hague Convention – 9 year old child brought to Australia by mother – application by Central Authority seeking child’s return brought more than one year after child’s removal – regulation 16(2) applies – whether removal “wrongful” – whether father had “rights of custody” – whether child settled in Australia – whether court retains a discretion to order return where child settled – whether grave risk to child if returned – whether child’s objections show a strength of feelings beyond mere expression of a preference or of ordinary wishes – whether child of sufficient age and maturity to take views into account – no set age at which appropriate to take account of children’s views – child’s removal not wrongful – in event removal was wrongful, child now settled – exercise of discretion not to order return pursuant to reg 16(3)(c) – application of Central Authority dismissed. |
| Family Law Act 1975 (Cth) s 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 16(1), 16(1A), 16(2) & 16(3) |
| De L v Director- General Department of Community Services (NSW) (1996) 187 CLR 640 H and others (Minors), In re [1997] 1 FLR 872 C v C (Abduction: Rights of Custody) [1989] 1 WLR 654 J and Director- General Department of Community Services (2007) FLC 93-342 Wenceslas and Director- General, Department of Community Services (2007) FLC 93-321 Re D (a child) (abduction: custody rights) [2007] 1 All ER 783 Resina and Resina (unreported decision of Full Court delivered 22 May 1991) Northern Territory Central Authority and Pankhurst [2007] FamCA 1345 MW v Director-General, Department of Community Services [2008] HCA 12 Secretary, Attorney General’s Department v TS (2001) FLC 93-063 Brooke, S v Director General, Department of Community Services (2002) FLC 93-109 Graziano and Daniels (1991) FLC 92-212 |
| APPLICANT: | NORTHERN TERRITORY CENTRAL AUTHORITY |
| RESPONDENT: | MS GAMBINI |
| FILE NUMBER: | DNC | 562 | of | 2007 |
| DATE DELIVERED: | 9 MAY 2008 |
| PLACE DELIVERED: | ADELAIDE |
| PLACE HEARD: | DARWIN |
| JUDGMENT OF: | BURR J |
| HEARING DATE: | 5 MARCH 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS ORWIN |
| SOLICITOR FOR THE APPLICANT: | MARGARET ORWIN |
| COUNSEL FOR THE RESPONDENT: | MS TRUMAN |
| SOLICITOR FOR THE RESPONDENT: | COLLIER & DEANE |
Orders
That all previous Orders of this Court be and the same are hereby discharged.
That the application of the Central Authority filed 2 October 2007 be and the same is hereby dismissed to the effect that the Court declines to order the return of the child …born … November 1998 to Italy.
That paragraphs (b) and (d) of the mother’s Cross-Application filed 19 November 2007 be and the same are hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Northern Territory Central Authority & Gambini is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: DNC 562 of 2007
| NORTHERN TERRITORY CENTRAL AUTHORITY |
Applicant
And
| MS GAMBINI |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
I have before me for determination proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the regulations”).
On 2 October 2007 the Northern Territory Central Authority (Secretary to the NT Department of Health and Community Services) filed an application pursuant to the regulations seeking the return of the child to Italy. The child was born in November 1998 in Italy and is now aged 9 years.
The respondent to these proceedings is the child’s mother. The child’s return was requested by her father.
Pursuant to the application filed on 2 October 2007, the Central Authority seeks the following orders:
4.1.That leave be granted to file this application out of time.
4.2.The child [...] be forthwith returned to her habitual residence in Italy.
4.3.That a warrant issue to the Marshall and all officers of the Australian Federal Police and all officers of the Police Forces of the States and Territories of the Commonwealth of Australia to take possession of the child […] and to deliver the said child to the person holding, occupying or performing the duties of the office or position of Secretary to the Department of Health and Community Services in Alice Springs in the northern Territory or such other person as the Secretary authorizes in writing.
4.4.That until further order the respondent by herself or her servants and agents be restrained by injunction from causing or permitting or suffering the said child:
i)to be removed form the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order:
ii)to be removed from Alice Springs in the Northern Territory;
iii)to reside at any place other than her present residential address or any other residence at which the applicant has agreed that the child may reside,
4.5.That the Respondent, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia in Darwin for safe custody, any or all passports held in the name of the said child or upon which the said child’s name appears and be restrained from applying for any further or other passports for the said child pending further order of this Court.
4.6.That a sealed copy of these Orders be provided forthwith to the Marshall of the Family Court of Australia, the Secretaries of the Commonwealth Departments of Foreign Affairs and Immigration and the Commissioner of the Australian Federal Police.
4.7.That leave be granted to file the Affidavit of Applicable law prior to the hearing of this matter.
4.8.Such other orders that the Court thinks fit.
On 19 November 2007 the mother filed a Cross Application under the Regulations seeking the following orders:
5.1.That the application of the State Central Authority Secretary to the NT Department of Health & Community Services, filed 2 October 2007, be dismissed.
5.2.That the parents have equal shared responsibility for the child […], born [in] November 1998.
5.3.That the child be permitted to live in Australia with the mother.
5.4.That the child spend time with the father as agreed between the parties.
Background and Chronology
The father was born in December 1968 in Italy and is now aged 39 years.
The respondent mother was born in August 1970 in Italy and is now aged 37 years.
The father and mother were married in September 1995 in Italy.
There are two children of the marriage, A, born in September 1996, now aged 11 years, and the child, E, born in November 1998, now aged 9 years. These proceedings only relate to the child E (“the child”).
The father and mother separated in 2001.
On 29 November 2004 the parties were authorised to live apart by order of a Court of Law in Italy and the mother given sole custody of the two children, with the father having rights of access. According to the mother, these specified times were Tuesdays and Thursdays from 3.30pm to 8.00pm, every two weeks from 3.00pm Saturday to 8.00pm Sunday, 15 days during summer holidays, with public holidays alternated between the parents. The father does not specify what his access was. The mother has annexed a copy of a Court Order dated 29 November 2004 to her affidavit of 19 November 2007, however, the document is in Italian and no translation was provided.
In June 2001 the mother commenced living with her current partner Mr Z.
The mother alleges that on 27 February 2005 the father punched the child A in the head, causing a haematoma on his left ear, and threw a chair at the child. Criminal charges were laid against the father.
On 13 April 2005 the Children’s Court in Italy made orders temporarily suspending the father’s contact with the children on account of the incident on 27 February 2005 and ordered a report from a Family and Community Services Office. That report was prepared by Dr Q and dated 31 August 2005.
On 14 September 2005 orders were made again permitting the father to see the children as previously ordered by the Court.
In October 2005 the mother and father reached agreement that A would live with the father and E with the mother.
In October 2005 the mother’s partner, Mr Z moved to Australia.
On 22 December 2005 the father and mother filed a consensual petition for divorce. The parties sought orders pursuant to their agreement, namely that the father be granted custody of A, and the mother granted custody of E (Exhibit 1). Both parents were to have rights of visitation to the other child. According to the application, such visitation was to be “subject to the parties’ prior mutual agreement and compatibility with the children’s needs”. The parties also sought orders that “the parties give their mutual authority for their respective non custodial children to travel abroad.” The mother states she was required to drop all criminal proceedings against the father as she was informed a divorce could not be consensual where one party had laid criminal charges against the other.
The mother states in her affidavit filed 19 November 2007 at paragraph 50 that the last arrangement for visiting and spending time with the children prior to her leaving Italy was that the children would spend time with the other parent depending on their extra- curricular and social activities. The mother states she saw A about once a week and E saw the father about once a week. The mother contends the arrangements were “spasmodic” and that “nothing concrete was in place”.
The mother left Italy on 7 February 2006 with E, arriving in Sydney on 9 February. The mother states she only intended to come to Australia for a holiday and admits she did not seek the father’s permission to take the child, as she believed the Italian courts had already granted her permission and her lawyers advised her she was able to. The mother states she believed the father was aware of her plans as she had advised her son who lived with the father. The mother states she and the child E spent a week on the Gold Coast in Queensland and travelled through Sydney before making their way to the Northern Territory where Mr Z lived.
In March 2006 the mother was granted a 457 Visa (the full title of which is a Temporary Business (Long Stay) – Standard Business Sponsorship (Subclass 457 Visa). The mother states the child was enrolled to go to school in the Northern Territory the next day.
On 29 January 2007 the Court of Law in Italy pronounced the father and mother’s divorce, granted the father custody of both children and granted the mother rights of visitation.
On 8 May 2007 the father completed an application for the return of E.
On 2 October 2007 proceedings were commenced in the Family Court of Australia by the Northern Territory Central Authority.
On 2 November 2007 Dawe J ordered a Family Report be prepared to ascertain the child’s views in relation to reg 16(3)(c), and made orders restraining the respondent from removing the child from the Commonwealth of Australia, the Northern Territory or her current place of residence. The mother was also ordered to deliver the child’s passport to the Registry.
On 19 November 2007 the mother filed a cross application seeking that:
26.1.the application of the State Central Authority be dismissed;
26.2.the parents have equal shared responsibility for the child E,
26.3.the child be permitted to live in Australia with her mother and the child spend time with the father as agreed.
Ms B, Family Consultant, interviewed the mother and E on 19 November 2007. On 26 November 2007 a Family Report was produced. Ms B concluded that E expressed “a strong objection to returning to live in Italy”, had lived in Australia for 19 months and “is well established in the community.” Ms B concluded the impact of the child returning to Italy would be “devastating”.
On 11 December 2007 Dawe J amended her order of 2 November 2007 such that the mother be permitted to travel on a holiday with the child from 20 December 2007 to 20 January 2008.
The mother and child currently live in the Northern Territory with the mother’s partner, Mr Z. The child attends school and participates in various extra curricular activities. The mother is working as a child care centre.
Hearing and Evidence
At the hearing, Ms Orwin appeared as Counsel for the NT Central Authority and Ms Truman appeared for the respondent mother.
Ms Orwin for the NT Central Authority sought to rely on the application filed 2 October 2007, the affidavit of Ms Orwin filed 5 November 2007 annexing an affidavit of the applicable law in Italy and the affidavit of the father filed 3 March 2008. Annexed to the NT Central Authority’s application are various documents, including the form completed by the father seeking an application for return dated 8 May 2007 (Annexure “A”), an affidavit of the father (in Italian and translated to English) dated 4 September 2007 (Annexure “I”) and a copy of the judgment of the Court in Italy of 29 January 2007 (in Italian and translated to English) (Annexure “J”). With respect to this affidavit of the father, the first 67 pages of the document are in Italian, with the English translation of the material following from page 68 onwards. Ms Orwin acknowledged that the translation provided was “quite appalling”, but that notwithstanding grammatical errors, the content of the translation was “fairly accurate.” Ms Truman indicated she did not have any instructions regarding any issue with the translation.
Ms Truman for the mother sought to rely on the affidavits of the mother filed 19 November 2007 and 25 February 2008, the affidavit of the mother’s partner, Mr Z, filed 19 November 2007 and the mother’s cross application also filed on 19 November 2007.
Both parties sought to rely on the Family Report prepared by Ms B and produced on 26 November 2007. Neither party chose to call Ms B to give evidence regarding the Family Report. Ms Orwin did raise some concerns regarding the report, particularly that the report writer did not specifically address the child’s age and maturity and that the report may be tainted in some way if the mother was present during the child’s interviews, possibly influencing the child’s responses. I indicated to Ms Orwin, however, that as she had not elected to call Ms B to ask her questions she appeared limited to the face value of the report.
Mother’s submission
Counsel for the mother outlined five bases on which the mother opposed the application for the child’s return, namely:
34.1.there is no mandatory requirement for the child’s return due to father’s failure to bring proceedings within one year of the child’s removal
34.2.the child’s removal was not wrongful as the father did not have any rights of custody prior to child’s removal
34.3.if the father did have rights of custody, he was not exercising them and would not have exercised them if the child was not removed (reg 16(3)(b)(a)(i))
34.4.there is a grave risk to the child if returned (reg 16(3)(b))
34.5.the child objects to her return (reg 16(3)(c))
The Law
Italy is a Convention country. In Australia, the Convention on the Civil Aspects of International Child Abduction is dealt with by section 111B of the Family Law Act 1975 (Cth) and the regulations made pursuant to this section. Section 111B provides:
(1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.
(1A)In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:
(a)relating to the onus of establishing that a child should not be returned under the Convention; and
(b)establishing rebuttable presumptions in favour of returning a child under the Convention; and
(c)relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.
The relevant regulations are the Family Law (Child Abduction Convention) Regulations 1986. Regulation 16 outlines the court’s obligation to make a return order and provides:
Regulation 16
(1) If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
(2)If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child’s return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
Extracts of the relevant law in Italy are attached to the affidavit of the father’s Italian solicitor, Mr Portelli (annexed to the affidavit of Ms Orwin filed 5 November 2007). Mr Portelli provides his opinion regarding “rights of custody”, however, his opinion related to the father being the custodial parent pursuant to the order of 29 January 2007, not his rights at the time the child was removed.
Article 6 of Law 898/1970 in relation to the “Obligation to the support, education and development of children” provides:
1.The moral obligation (provided by articles 147 and 148 of the civil code) in relation to the support, education and development of a natural or adopted child during a marriage, whose civil effects have been dissolved by divorce, is still valid even in case of one or both parents marrying again.
2.The court that pronounces the dissolution or the termination of the civil effects of the marriage also states who between the parents is awarded custody of the child and implements any other measure in relation to the moral and material interest of the child. If necessary, in the interest of the younger child and in consideration of his/her age, the Court can also award joined or alternate custody.
3.The Court determines the amount and the manner in which the non-custodial parent must contribute to the support, development and education of the child, as well as the modalities that he/she must adopt to exercise his/her rights while having a relationship with the child.
4.Unless otherwise ruled by the Court, the custodial parent has exclusive parental authority over the child; he/she must comply with the conditions set by the Court. Unless otherwise ruled, both parents must take the most important decisions regarding the welfare of the child conjointly. The non-custodial parent has the right and the duty to tend to child’s development and education and can appeal to the court if he/she believes that decisions have been made that could be against the child’s best interest.
5.In the event that custodial parent breeches [sic] the set conditions, the Court will assess his/her behaviour to evaluate the possibility of reversing the custody.
…
9.When issuing provisions related to the custody of the child and to the contribution for his/her support, the judge must take into account any agreement between the parties: the provisions may differ from the requests and agreement of the parties and could be issued after the assumption of evidence inferred by the parties or ordered by the judge, inclusive, if necessary in consideration of their age, the testimony of the younger children.
…
12.When young children are involved, each parent, within the strict term of thirty days, must notify the other parent of any changes of residence or address. Failure to comply with this obligation will result in the payment of compensation for any damages or expenditure incurred in locating him/her.
Also provided are extracts of Articles 31 and 36 of Law 218/1995.
Article 31 relates to “Personal separation and divorce” and provides:
1.Separation and termination of marriage are regulated by the national law common to husband and wife at the time of the application for separation of termination of marriage; where no such law is available the law of the foreign country were [sic] the parties have spent their matrimonial life is applicable.
2.If separation or termination of marriage are not included in the legislation of the foreign country, than [sic] the Italian law must be applied.
Article 36 relates to the “Relationship between parents and children” and provides:
1.The personal and financial relationship between parents and child, including parental authority, are regulated by the national law of the child.
Time of filing application - Whether reg 16(2) applies
Reg 16(1) applies where an application is brought for a return order within a year of the removal or retention of the child, and provides that where the removal or retention was wrongful, the court, subject to subregulation (3) must make the order.
However, where an application is brought more that one year after the child’s removal or retention, reg 16(2) applies:
(2)If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
The child was removed from Italy on 7 February 2006. Proceedings were not commenced pursuant to the regulations until 2 October 2007.
On the father’s evidence, he requested, through his lawyer, that the mother return the child in March 2006. The father continued with the proceedings in Italy, amending his application to seek custody of both children. The father contends that following the court’s decision of 29 January 2007 his lawyer notified the mother’s mother of the verdict and sent copies of the verdict both to the mother and Mr Z by registered mail, which he claims the mother refused to collect. According to the father, he requested intervention through the Central Authority in February 2007. However, the application requesting the Central Authority seek the child’s return was not completed until 8 May 2007 (Annexure “A” to the initiating application). The father explains in his affidavit (Annexure “I” to the initiating application) that he did not initiate proceedings until February 2007 as he believed the mother would return the child and, until the order of the Court in January 2007, he was not the “guardian parent” of the child but “just holder [sic] of a right to visit”.
Counsel for the Central Authority submitted that negative findings should not be made against the father as at all times during the time between the child’s removal and the initiation of proceedings he was trying to secure the return of the children. Ms Orwin referred me to De L v Director- General Department of Community Services (NSW) (1996) 187 CLR 640, specifically to the judgment of Kirby J at 669, in which his Honour commented on the need for urgency in Hague Convention cases, and also H and others (Minors), In re [1997] 1 FLR 872, which dealt with acquiescence.
It is the father’s evidence that he requested the intervention of the Central Authority in February 2007. The NT Central Authority received notification of the application in May 2007, 15 months after the child’s removal. As previously indicated, however, the application seeking return was not filed in this court until the 2 October 2007, some 20 months after the child’s initial removal and 5 months after the Central Authority received notification. Ms Orwin explained that this delay was caused by the difficulty of obtaining translations of documents.
Ms Truman for the mother submits the application was clearly brought outside 12 months from the date of the child’s removal. The mother maintains she was not aware the father was also seeking custody of the child and never received any correspondence allegedly sent by the father’s lawyer. Ms Truman contends that the mother never received any notice requesting the child’s return.
The regulation clearly refers to whether the application was filed within one year of the child’s removal. Despite any attempts the father may have made to request the child’s return informally and by pursuing orders in the Italian courts, the application was not filed in this court until 2 October 2007, 20 months after the child’s removal. The 12 months had already expired by the time the Central Authority was given authority to proceed. Reg 16(2) applies to this application.
Application of reg 16(2)
Reg 16(2), as outlined above at paragraph 43, does not expressly state that the court must be satisfied the removal or retention of the child was wrongful, as required by subregulation (1)(c) where an application is brought within one year. Subregulation (1A), which sets out when a removal or retention is wrongful, also only expressly refers to subregulation (1) not (2). It would seem the failure to refer to the need for the removal to be wrongful is a drafting oversight,[1] as the Convention is only concerned with the wrongful removal or retention of children, as outlined in Article 1 of the Convention:
The objects of the present Convention are-
ato secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
bto ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
i) Lexis Nexis online - Australian Family Law – Commentary on Regulation 16 [CAC reg 16.2] Wrongfulness an implied requirement in proceeding under subreg (2) (application more than a year after the removal or retention) accessed 14/3/08
It would also produce the anomaly that a removal would be required to be wrongful if an application is filed within one year, but not where an application is brought outside the one year time frame.[2]
ii) Ibid.
The purpose of the Family Law (Child Abduction Convention) Regulations 1986, as outlined in regulation 1A, is to give effect to s 111B of the Act and the regulations are to be construed having regard to the principles and objects of the Convention.
In light of the objects of the Convention, where an application is brought pursuant to the Regulations more than one year after the removal or retention, the court must still be satisfied the removal or retention was wrongful, however the court is not required to order the child’s return if satisfied he or she is settled in their new environment.
Whether child’s removal was “wrongful”
Reg 16(1A) outlines when the removal of a child is “wrongful” under the regulations:
(1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
The child was under 16 years of age at the time of her removal to Australia. It is agreed the child was habitually resident in Italy prior to her removal, having lived in Italy all of her life.
The final requirements for a finding that the child’s removal was wrongful are whether the father had “rights of custody” with respect to the child (reg 16(1A)(c)), whether the removal was in breach of those rights (reg 16(1A)(d)), and whether the father was exercising those rights of custody (reg 16(1A)(e)(i)).
The term “Rights of custody” is defined in reg 4:
(1)For these Regulations, a person, institution or other 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 Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative decision; or
(c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.
Article 5 of the Convention distinguishes between “rights of custody” and “rights of access”:
For the purposes of this Convention-
a‘rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
In C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, Lord Donaldson discussed the term “rights of custody” at 663:
Custody," as a matter of non-technical English, means "safe keeping, protection; charge, care, guardianship" (I take that from the Shorter Oxford English Dictionary, 3rd ed., rev. (1973)); but "rights of custody" as defined in the Convention includes a much more precise meaning which will, I apprehend, usually be decisive of most applications under the Convention. This is "the right to determine the child's place of residence." This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right -- in so far as the child is to reside in Australia, the right being that of the mother; but, in so far as any question arises as to the child residing outside Australia, it being a joint right subject always, of course, to the overriding rights of the court. If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the Convention. I add for completeness that a "right to determine the child's place of residence" (using the phrase in the Convention) may be specific -- the right to decide that it shall live at a particular address or it may be general, e.g. "within the Commonwealth of Australia.
In J and Director-General Department of Community Services (2007) FLC 93-342 (delivered 18 September 2003), the Full Court (Finn, Holden and Mushin JJ) accepted a “three-stage approach” to determining whether a removal breaches rights of custody and is thus wrongful (referred to by Finn J in Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321 at [22]), namely:
1.The first task of the court is to establish, on the evidence before it, what rights, if any, the parent seeking the return had under the law of the foreign country in relation to the child at the time of removal;
2.The next stage is to resolve, as a matter of Australian law under the Regulations (being the law of the forum where the Convention has been invoked), whether they amount to 'rights of custody' within the meaning of the Regulations; and
3.Finally, the question is whether or not the removal or retention of the child was in breach of those rights, and therefore whether or not the removal was wrongful within the Regulations.
The first step is therefore to establish what rights the father had prior to the child’s removal.
Counsel for the Central Authority submitted that the father had rights of access with respect to both children pursuant to an order of the Italian court of 29 November 2004. The mother also outlines in her affidavit of 19 November 2007 that the father had access rights following separation. This access was suspended on 13 April 2005 by the Children’s Court in Italy, but reinstated on 14 September 2005 (Decree of the Children’s Court in Italy - Father’s affidavit filed 3 March 2008, p 88).
In 2005 the mother and father reached agreement that A would live with the father and E with the mother, with each parent having rights of visitation with respect to the other child. They filed a “consensual petition for divorce” on 22 December 2005 seeking orders in these terms. According to the Central Authority there is no evidence that any orders were made in terms of these orders sought. The Central Authority submits, however, that the agreement took effect from that date, whether or not “there was a court seal on it”. I am satisfied pursuant to earlier orders of the Italian court, and also the subsequent agreement reached between the parties, the father had rights of access with respect to E.
The next step is to determine whether the rights of the father amount to “rights of custody” under the Regulations. May and Thackray JJ outlined in Wenceslas (supra) at [105] that “rights of custody” for the purposes of the Convention is to be determined in accordance with the law of Australia and not the child’s country of habitual residence.
Authority indicates that “rights of access” alone do not amount to “rights of custody”, but must be accompanied by a right to determine the child’s place of residence.
In J and Director-General Department of Community Services (supra) the Full Court stated, at 81,856:
…reference to the somewhat unsatisfactory definition of rights of custody in Reg 4 (set out in paragraph 17 above), and also to the language of Article 5 of the Convention (set out in paragraph 34 above) suggest that "rights of custody" under the Regulations, or under the Convention, must include the right to determine the child's place of residence.
In Wenceslas and Director-General, Department of Community Services (supra), May and Thackray JJ, after discussing the approach taken in New Zealand in the cases of Gross v Boda [1995] NZFLR 49 and Dellabarca v Christie [1999] 2 NZLR 538 stated:
164.We accept the present case could have provided an appropriate vehicle for this Court to take up Thorpe LJ’s suggestion to consider whether or not it is appropriate for Australian courts to adopt the more liberal construction of “rights of custody” now clearly being employed in New Zealand.
165.As a matter of statutory interpretation we accept that there could be merit in the view taken by the New Zealand courts; however, there is also no doubt that such an interpretation is contrary to the approach hitherto taken in Australia. More importantly, reference to the judgment of Thorpe LJ in Hunter v Murrow demonstrates that the New Zealand approach is not only contrary to the longstanding approach taken in the Courts of the United Kingdom but in many other Convention countries.
166.Given the desirability of consistency in matters relating to the interpretation of international conventions, and especially in the absence of informed argument on both sides of the present appeal, we are of the firm view there is no reason for us to depart from the approach adopted by the Full Court in Jiang.
167.Hence, we conclude that mere rights of access or contact are insufficient to constitute rights of custody, unless accompanied by the right to determine the place of residence of the child. In other words, the right to determine the place of residence of the child is not just sufficient, but necessary to establish "rights of custody" for the purposes of the Regulations.
A “right of veto” in relation to the child’s removal can also amount to a “right of custody”. (See Re D (a child) (abduction: custody rights) [2007] 1 All ER 783; Resina and Resina (unreported decision of Full Court delivered 22 May 1991) and State Central Authority and Pankhurst [2007] FamCA 1345).
In Wenceslas (supra) Thackray and May JJ concluded (at [186]) on the basis of the law as outlined in Resina and Resina (supra), that a child’s removal from a country will prima facie breach rights of custody if the parent or some institution or body had a right of veto in relation to the child’s removal.
The decision in Wenceslas was appealed to the High Court. The High Court recently handed down its decision in this matter (reported as MW v Director- General, Department of Community Services [2008] HCA 12 delivered 28 March 2008), following the hearing in this matter now before me for determination. On appeal the Central Authority pursued three avenues to establish the father had “rights of custody”, namely, an access order said to give the father “the right to determine the place of residence of the child”, alleged breach of rights of custody as defined by New Zealand Courts and by operation of New Zealand statute.
With respect to the concept of a right to veto as a “right of custody”, the majority (Gummow, Heydon and Crennan JJ) at [79] noted that a right of veto in the nature of a prohibition to remove the child from the jurisdiction may give rise to a right in each parent to determine that there be no change in the place of residence. Their Honours noted the difficulty where the “source of power” of the right to veto was not in terms of a court order or statute, but merely an agreement between parents, which would only amount to a “potential right”, dependent upon a successful application for enforcement. Their Honours noted the “right to determine” in reg 4 is “more than an expectancy or potential right”. Their Honours concluded, however, for the purposes of the appeal it was unnecessary to decide “which line of the above lines of authority concerning the ‘right of veto’ should be accepted as indicative of the proper construction of ref 4(2)” (at [82]) as the relevant access order before them conferred no “right of veto” on the father. The order did not impose any prohibition on the removal of the child from the jurisdiction. At [84]:
The Authority fails in its reliance upon the Access Order as the source of custodial rights of the father because its argument does not adequately observe the distinction drawn in the Regulations and in the Convention between rights of custody and those of access. The importance of the preservation of the distinction in construing the Convention was, with respect, correctly emphasised by the House of Lords in In re D (A Child) (Abduction: Rights of Custody)[50]. Reference was made by the Authority to the "frustration" of the rights of access given the father pursuant to the Access Order, by removal of the child from New Zealand. But that description of the events that happened does not translate the rights of the father to a right of determination of the place of residence of the child and thus to a right of custody.
Kirby J in dissent, however, was of the view that the access order gave the father “exclusive rights of ‘care’ during the nominated periods’”, and “impliedly gave the father a right to veto the mother’s unilateral alteration of the child’s place of residence from New Zealand to Australia where, necessarily, the NZ court order could not be fulfilled according to its tenor” (at [215]).
The Central Authority submitted that under the Family Law Act, if a parent has a right to have contact or spend time with a child, that parent has the right to determine the residence of the child and a right to veto the person with custody relocating with the child. The Central Authority referred me to Re D (a child) (abduction: custody rights) (supra) and Resina and Resina (supra) (mentioned above). It was submitted the father did not consent to the child leaving Italy, and the child’s removal breached the agreement before the court and the father’s right to veto.
The mother outlines in her affidavit of 19 November 2007 that at the time she left Italy to holiday in Australia, she believed she had permission from the Court to travel overseas with the child. The mother outlined the parties sought in their petition to the court “mutual authorisation to expatriate said children”. The mother states she understood this to mean authorisation to expatriate “to live away from the country in which you were born” and not only to go overseas on holiday, and that she believed she had this permission at the time she left Italy. The translation of the joint application to the court states that the parties “give their mutual authority for their respective non custodial children to travel abroad” (emphasis added). The Central Authority submitted the mother could not have been aware of such authorisation as the order was not made until 29 January 2007, and submitted the wording “mutual authorisation to expatriate the children” usually means that the parties have to obtain the consent of the other before removing children from the jurisdiction.
Ms Truman submits the mother was the custodial parent up until the order of 29 January 2007, and referred to the father’s own affidavit (Annexure “I” to the application) in which the father stated he “was not a guardian parent but just a holder of a right to visit”. The mother submitted it is clear that the father did not have rights of custody at the time of child’s removal, relying on statements in Wenceslas (supra) that mere rights of access do not amount to rights of custody unless accompanied by the right to determine the child’s place of residence. Ms Truman submitted there is no evidence the father had the right to determine the child’s place of residence, thus he did not have rights of custody and the child’s removal was not wrongful.
The mother referred to relevant law provided by the Central Authority, and specifically para 4 of Art 6 of Law 898/1970 where it states that “Unless otherwise ruled by the Court, the custodial parent has exclusive parental authority over the child.” This extract continues “he/she must comply with the conditions set by the Court. Unless otherwise ruled, both parents must take the most important decisions regarding the welfare of the child conjointly.”
The father had rights of access with respect to the child. However, I am not satisfied on the evidence that the father had the right to determine the child’s place of residence or to veto her removal from Italy. I therefore find that he did not have “rights of custody” as envisaged by the Regulations.
Although not argued by counsel before me, another issue which warrants brief consideration is whether the Italian Court held “rights of custody” with respect to the child. Reg 16(1A)(c) refers to a ”person, institution or other body” who has rights of custody with respect to the child. It has been suggested that courts can have “rights of custody” for example where courts have the right to veto a child’s removal from the country. (Wenceslas (supra) at [223]).
In Secretary, Attorney General’s Department v TS (2001) FLC 93-063, Nicholson CJ found the Family Court of New Zealand had rights of custody in circumstances where there was an order requiring the mother to surrender the child's travel documents to the Court, and where the mother had notice of the father's application to restrain her from leaving the country, which was to be heard on the day that she removed the child.
In Brooke, S v Director General, Department of Community Services (2002) FLC 93-109, the Full Court (Kay, Holden and Barlow JJ) held at 89,040:
27.Where a foreign court is properly seised of an issue as to where a child should reside, and where, whilst those proceedings are pending the child is removed from the jurisdiction of that Court without the consent of the Court, then, where an application is properly brought under the terms of the Family Law (Child Abduction Convention) Regulations 1986 in Australia, an Australian court is bound to recognise the rights of custody that repose in the foreign Court otherwise properly seised with the dispute where those rights of custody include the right to determine the place of residence of the child.
The court concluded at the time of the child’s removal the court had the right to determine the child’s place of residence and the child’s removal breached that right.
This issue was also addressed by the Full Court in Wenceslas (supra) and by the High Court on appeal in MW v Director – General, Department of Community Services (supra). The Full Court discussed whether a court can have rights of custody, with reference to s 80 of Care of Children Act 2004 (NZ), which imposes criminal responsibility on parents removing children from New Zealand without the leave of the court in certain circumstances. May and Thackray JJ concluded a court can have rights of custody, stating at [223]
The authorities we have discussed above (and see also Brooke, S v Director General, Department of Community Services (2002) FLC 93‑109) make clear that a court can have “rights of custody” for the purposes of the Regulations. This may arise where, for example, the courts of the country in which the child was habitually resident had the power to veto the child’s removal.
Finn J noted at [51] that in both the cases of TS (supra) and Brooke (supra), proceedings in relation to the subject child were pending in a foreign court, which was not so in the case before her Honour. Finn J stated in relation to whether s 80 of the New Zealand Act gave the courts “rights of custody” at [54]:
For my part I am far from persuaded that a legislative provision which requires the leave of the court to be obtained before a child, who is the subject of parenting proceedings or orders, can be taken out of a country (for any reason) should be regarded as conferring rights of custody on the courts of that country for purposes of the Regulations (at least in the absence of pending proceedings in one of those courts). I have great difficulty in seeing how such a concept can be fitted within the Regulations as they are currently drafted.
In the High Court, the majority stated at [86] that “[t]he terms of reg 4 ("a person, an institution or another body") are sufficiently broad to render what may be classed as a court the holder of rights of custody in relation to a child.” Their Honours then turned to the specific wording of reg 16(1A)(c) which provides a removal is wrongful where:
the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia;
The majority concluded that even if the court in question did have such rights, it was not the applicant. Their Honours stated:
The decisions of courts in other Convention countries, including those of the Supreme Court of Canada and the House of Lords which do not link the identity of the Convention applicant to the holder of the custody rights, must be read with attention to the precise requirements of the Australian legislation. The Regulations, as Finn J indicated, do not accommodate a convention application by a parent asserting breach of the rights of custody vested in a court. (Footnotes omitted)
It is not necessary, in my view to form any view on whether the Italian courts had any rights of custody with respect to the child. On the authority of the High Court, it is the person or institution seeking the return which must hold the rights of custody, ie the father.
As stated previously, I therefore find the father did not have rights of custody with respect to the child at the time of her removal from Italy in February 2006. It necessarily follows that the child’s removal was not wrongful under reg 16(1A). In the event I am wrong as to this conclusion, however, I will proceed to consider whether the remaining requirements under subregulation 1A are met, before turning to the other issues which arise for consideration in the event the child’s removal was found to be wrongful under the regulations.
The next issue for consideration in determining whether the removal was wrongful is whether the child’s removal breached “rights of custody”. It is clear that if the father had rights of custody with respect to the child that the mother’s actions in removing the child to Australia would be in breach of such rights.
The last requirement is that the father was exercising his rights of “custody” or would have if the child had not been removed. Counsel for the mother submitted the father was only exercising rights of visitation, not custody. On this issue the mother states in her affidavit filed 19 November 2007:
50.The last agreement for visiting and spending time with the children prior to leaving Italy, was that the children would spend time with the other parent depending upon their extra-curricular and social activities. I saw [A] about once a week and [E] saw her father about once a week. The arrangements were spasmodic however as nothing concrete was in place.
The Central Authority submits, consistent with the submission that the father had rights of custody, that he was exercising rights of custody. The father makes vague reference to the fact he was exercising his rights of access in his affidavit (Annexure “I” to initiating application):
Towards the end of February 2006, without prior communication, the father’s visits to his daughter came to an end.
The father makes no reference to how often those “visits” occurred, however.
Nonetheless, I am satisfied on the mother’s own case that if the father’s rights of access amount to rights of custody, he was exercising those rights at the relevant time.
Although I have found that the father did not have rights of custody, and therefore the child’s removal was not “wrongful” under the Convention, in the event I am wrong in this conclusion, I now consider the further issues that arise had the child’s removal been wrongful.
Whether the child is settled
Reg.16(2) If:
…
(c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
As the application was filed by the father more than one year after the child’s removal, the court is required to consider whether the child is now settled in her new environment.
The burden of establishing that the child is settled rests with the person opposing the child’s return, in this case the mother. There is no presumption that a child is settled merely because they have lived in a country for more than 12 months. (See Graziano and Daniels (1991) FLC 92-212 at 78,436).
In Graziano and Daniels (supra) the Full Court found the term “settled” had two constituent elements namely:
Firstly, it involves a physical element of relating to, being established in a community and an environment. Secondly, I find that it has an emotional constituent denoting security and stability.
This approach, has since been rejected. In Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842, Ellis ACJ and Chisholm J stated at 85,853:
In our view, therefore, insofar as Graziano suggests that the test for whether a child is ‘settled in his or her new environment’ requires a degree of settlement which is more than mere adjustment to surroundings, or that the word ‘settled’ has two constituent elements, a physical element and an emotional constituent, it represents a gloss on the legislation and should not be regarded as accurately stating the law. We agree with the Full Court in M and C (the correctness of which was not challenged before us) that ‘The test, and the only test to be applied, is whether the children have settled in their new environment’. (Emphasis added) (See also Director General, Department of Community Services v M and C (1998) FLC 92-829 and Secretary, Attorney General’s Department v TS (2001) FLC 93-063).
Thus, the only test for my consideration is whether the child is settled in Australia.
Ms Truman for the mother submitted the child is now settled in Australia, having lived in Australia for two years. The mother details the child’s life in Australia at paragraphs 59 to 70 of her affidavit filed 19 November 2007.
The child has been attending school in the Northern Territory since March 2006. In her affidavit the mother states:
65.[The child] is a happy member of the community, enjoying life in [the Northern Territory,] having plenty of friendships, and a wonderful social life which she did not have in Italy. …
66.Since [the child] has been in Australia, I have noticed the following changes: She is very happy, she has lots of friends, she loves going to school, she loves the outdoors, her sports, and the lifestyle. It makes me happy seeing her busy planning sleepovers and play overs with her friends. [The child] is a different little girl, no more crying every now and then for broken toys or her brother’s spiteful actions towards her.
67.[The child] enjoys her structured sports activities, showing excellent results in Rhythmic Gymnastics, bringing home medals and trophies from local and Terrritorian competitions.
.....
69.[The child] is a member of the School Choir.
In his supporting affidavit, the mother’s partner, Mr Z also states that the child has fitted into life in Australia very well.
The mother outlines the child’s schooling and extra curricular achievements during her time in Australia in Annexure F to her affidavit.
The Family Report confirms the mother’s comments with respect to the child’s schooling, activities and friendships:
8.[The child] talked enthusiastically about her friends, school and after school activities. She stated that she has ‘lots of friends’ and that her teacher is ‘nice’. Currently [the child] is in Year 3 at [a local] Primary School. She enjoys horse riding, gymnastics and netball.
The Family Consultant, states in the conclusion of her report:
15.[The child] has lived in Australia for 19 months and is well established in the community. It is apparent that she does not have a strong or positive relationship with her father and is somewhat apprehensive towards her brother. If she were to return to Italy she would be returning to an environment that is now unfamiliar to her and a family that is now estranged from her.
The child lives with her mother and mother’s partner Mr Z. The Family Consultant notes that the child refers to Mr Z as “dad”. The mother and Mr Z have been in a relationship since 2001 when the child was only 2 and a half years of age. The Family Consultant noted that the child considered Mr Z to be a “very well established and positive part of her family.” The mother confirms her daughter and partner have a very good relationship. Mr Z states that he cares for the child “like my own daughter”, but values the importance of her relationship with her father.
The mother has indicated she intends to apply for permanent residence in Australia as soon as she is eligible.
The term “settled in his or her new environment” in reg 16(2) is to be given its ordinary natural meaning and should not be given a restrictive approach (See Secretary, Attorney-General’s Department v TS (2001) FLC 93-063 per Nicholson CJ at 106 and State Central Authority v CR (2005) FLC 93-243). In State Central Authority v CR (supra), Kay J found a child to be settled in circumstances where his Honour found the child was “adjusted to it [the new environment] and appears to be a happy and contented child” (at 80,015).
The mother has indicated that if the child is returned to Italy, she would not be returning with her. It is the mother’s evidence that work is difficult to obtain in Italy and she is able to earn more and work more suitable hours in Australia. The mother also states she would have difficulty finding affordable housing in Italy and would be forced to live with her father, which she states is an unsuitable environment for children to be in. The mother is in a committed relationship with Mr Z, who is also unable to leave Australia due to financial hardship. The Family Consultant commented that the loss of these “secure and supportive relationships would be detrimental to [the child’s] well-being”.
I am satisfied the child is settled in Australia. She has now lived here for just over two years, has attended school in the Northern Territory for two years and according to the evidence has become established in the community through her social activities and her friends and on the evidence has a stable and settled home environment. By all accounts the child is happy and settled in Australia. The Family Consultant comments that if the child was to return to Italy she would be returning to an environment that is now “unfamiliar” to her and a family from whom she is estranged. In fact the Family Consultant goes further and states that the impact of the child’s return would be “devastating”.
Does the Court retain a discretion to return where the child is settled?
There has been debate as to whether or not the court retains a discretion to order the return of a child even where the court is satisfied the child is settled.
In a number of cases, the regulations have been interpreted such that the court does maintain such a discretion. (See Graziano and Daniels (1991) FLC 92-212 at 78,437).
However, the alternative position has also found support, as expressed by Kay J in State Central Authority v Ayob (1997) FLC 92-746, where his Honour found that the Convention no longer applies where an application is brought more than one year after the removal or retention and the child is settled. (at 84,072).
In Director General, Department of Community Services v M and C (1998) FLC 92-829, although not deciding the issue, the Full Court commented at 85,492 that they were not necessarily persuaded Kay J’s view was correct.
In Director-General, Department of Community Services v Moore (2003) FLC 93-132, Steele J found that where there was any ambiguity in reg 16, reg 15 gave the Court the requisite discretion of whether to grant a return order.
Whether that be true or not, it seems to me that Regulation 15, on its proper construction, is a source of power giving the Court a general discretion to make an order for the return of a child to his/her country of habitual residence. It should be read, subject to the detailed provisions of Regulation 16, but where Regulation 16 leaves the question open, it is my view, that Regulation 15 provides the Court with the requisite discretion.
In State Central Authority and CR (2005) FLC 93-243, Kay J confirmed that he was still “firmly of the view” that the Regulations provide no source of power to allow the court to make a return order where satisfied a child is settled in his or her new environment:
If the intention of the Regulations was to permit a discretion to return to exist even though the settled exception was established, then I would expect to find that power somewhere within Regulation 16(5). It is not surprising that it is absent given that the Regulations are seen as giving effect to the preamble and the objects of the Convention namely to secure the prompt return of children wrongfully removed to or retained in any Contracting State. As discussed at length in Ayob, the compromise reached between those who wanted a short time limit and those who wanted an open ended mandatory return was to opt for the settled exception. If it is established that a prompt and summary return under the Convention is no longer seen as appropriate, the ‘best interests’ considerations that accompany the exercise of local jurisdiction should be left to determine where the case should be heard and what orders should be made to provide for the child's welfare in all the circumstances. (At 80,016)
Kay J in his article ‘The Hague Convention- order or chaos?” (2005) 19 Australian Journal of Family Law 245 at 259, noted his decision in Ayob was followed by Singer J in Re C (Abduction: Settlement) [2004] EWHC 1245. However, an appeal from Singer J’s decision was upheld, where the Appeal Court stated:
In summary it seems plain to me that whatever may have been the drafting intention and whatever may be the academic criticism, the global judicial community in the main construes article 18 to confer upon the court a discretion nevertheless to order return in a case where the defendant has established both that the proceedings were commenced more than twelve months after the abduction and that the child is settled in a new environment. (Cannon v Cannon [2005]1 WLR 32 at [48]
More recently, in the House of Lords, Baroness Hale of Richmond discussed settlement and discretion in the decision of In Re M (FC) and another (FC)(Children) (FC) [2007] UKHL 55. Baroness Hale discussed the various authorities with respect to the maintenance of a discretion where settlement is established, concluding at [27]:
It would be putting it too high to say that there is a strong tide of international judicial opinion in favour of a discretion in settlement cases. On the other hand, Kay J in Australia and Singer J in England are the only judges to have expressed a contrary view.
At [31] Baroness Hale continues:
However, I have reached the conclusion, not without considerable hesitation, that article 12 does envisage that a settled child might nevertheless be returned within the Convention procedures. The words "shall ... unless" leave the matter open. It would be consistent with all the other exceptions to the rule of return.
……
47. In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer "hot pursuit" cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community
48. All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighed together with the circumstances which produced the exception and such pointers as there are towards the welfare of the particular child. The Convention itself contains a simple, sensible and carefully thought out balance between various considerations, all aimed at serving the interests of children by deterring and where appropriate remedying international child abduction. Further elaboration with additional tests and checklists is not required.
This issue was not directly addressed by counsel before me. However, I consider after an analysis of the aforementioned decisions that the court does retain a discretion where a child is settled. In these circumstances, however, I would not consider it appropriate to exercise such a discretion and order the child’s return, given the above discussion and the Family Consultant’s conclusions and recommendations in the matter.
Exceptions to mandatory return
Regulation 16(3) provides a discretion to the court to refuse to order the return of a child where one of the exceptions outlined is met.
Father not exercising “rights of custody”? Reg 16(3)(a)(i)
(a)the person, institution or other body seeking the child's return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained;
Counsel for the mother submitted the father was not exercising any rights of custody. I have already discussed this above in relation to the requirement under reg 16(1A)(e). As previously indicated, I am not satisfied the father had rights of custody, and thus he cannot be said to have been exercising any “rights of custody”. On the evidence, the father was exercising his rights of access with respect to the child. However, it appears his visits with the child were of a somewhat sporadic nature.
Grave risk – Reg 16(3)(b)
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;
The mother also opposed the child’s return on the basis that there is a “grave risk that the return will expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
In DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081, to which Ms Orwin referred me, as quoted in the case of HZ & State Central Authority [2006] FamCA 466, the High Court, (Gaudron, Gummow and Hayne JJ) said at [40]:
40. So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that ``there is a grave risk that [his or her] return... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation''. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
.........
Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in ``an intolerable situation''. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42. Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description ``grave''. Leaving aside the reference to ``intolerable situation'', and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43. Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence 31. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44. These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a ``narrow'' rather than a ``broad'' construction. There is, in these circumstances, no evident choice to be made between a ``narrow'' and ``broad'' construction of the regulation. If that is what is meant by saying that it is to be given a ``narrow construction'' it must be rejected. The exception is to be given the meaning its words require.
45. That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
In HZ and State Central Authority (2006) FLC 93-264, the Full Court discussed non return in cases of allegations of domestic violence. After reviewing the various authorities the Full Court stated at [73]:
The international jurisprudence on cases with similar facts leads to no clear statement of principle. In the non-return cases the facts have usually been very compelling but ultimately the final decision appears to come back to the words of Gleeson CJ in DP v Cth Central Authority (2001) 206 CLR 401, 407-408, at par 9 that:
The meaning of the regulation is not difficult to understand. The problem in a given case is more likely to be found in making required judgment. That is not a problem of construction, it is a problem of application.
Reg 16(3)(b) is to be determined objectively (see Director-General, Department of Community Services v M and C (1998) FLC ¶92-829).
In this regard, the mother submitted there was a grave risk to the child due to what she had witnessed and due to the father’s previous behaviour towards the children and mother. Counsel submitted even if the child was not at physical or psychological risk, to return the child would be to place her in an intolerable situation.
The mother referred to alleged violence by the father against both her and the children in Italy. At paragraphs 6 to 19 of her affidavit filed 19 November 2007 the mother outlines a number of incidents of alleged violence by the father towards in particular the child A, including that the father allegedly hit, slapped and kicked the child on different occasions and on another occasion allegedly held A’s head under a water pipe. The mother states at [16]:
16.[The father] was mostly a good husband and father, most times a nice guy, but when he was angry it was like he was a different person. He would ‘go crazy’. These angry episodes would happen sometimes every two weeks, sometimes not for 3 months. But always, something would happen and he would be angry and violent. Then, after five minutes he would calm down and be happy and it would be as if nothing happened.
…
19.As this kind of behaviour didn’t seem to have an end, in early 2001 I applied for separation as our family life became intolerable. This was triggered by [A]’s declaration while coming home from childcare saying, ‘Is Daddy at home?’ I answered, ‘Yes, why?” [A] said, ‘I don’t want to go home. Daddy is mean, is hurting me and making you cry.’
The mother alleges at [24] of her affidavit that on one occasion E was returned by the father “nearly naked (in only a singlet and jacket), because she had an accident during toilet training, in the month of January, when it was winter and cold was toughest. As a result she caught a bad cold.”
The mother alleges that on another occasion the father washed A’s arms with a brush after he painted his arms with markers, causing grazes. The mother states criminal charges were laid in relation to this. The mother also states the father tried to pierce A’s ear, causing an infection requiring a hospital visit.
The mother in particular refers to a specific incident that occurred on 27 February 2005, in which she alleges the father punched the child A in the head, causing a haematoma on his left ear, and “launched a chair” at the child. (Affidavit of mother filed 19 November 2007 at [27]). As a result of this incident, criminal charges were laid against the father and the father’s contact with the children was temporarily suspended by the court. These charges were subsequently withdrawn.
The mother alleges the father slapped or kicked the children and that the father encouraged A to act violently towards his sister.
The mother also outlines in her affidavit the father’s alleged violent behaviour towards her, including a conviction on 22 May 2005 (although from the supporting documentation she appears to have misstated the date of that conviction) for injuring the mother.
It is submitted on behalf of the mother that the child E was not only affected by physical violence, but also emotionally, having witnessed the father’s actions towards the mother and her brother.
In the Family Report, the family consultant comments:
10.[The child] does not have such positive thoughts and feelings about her brother and father. She described her brother as “mean” and talked about how [A] would break her toys, hit and scratch her and one time tried to choke her. She stated that it is “good here without him.” [The child] also stated that her father “hit me and slapped me” and “told my brother to hit me and slap me”. She believes that her father misses her and feels sad without her but that she does not like him and does not want to talk with him on the telephone.
…
13.[The child] became upset and teary when talking about her return to live in Italy. She stated that she would “cry to death”. She appeared to have some memory of arguments between her parents but did not present as fearful in relation to this. She predicted that if her parents and Mr [Z] were in the same place at the same time she and her brother would stand in the middle to stop the fighting. She further reported that she would ‘push my mum away because I don’t want her to get hit’.
The Family Consultant states in her conclusion:
It is apparent that she does not have a strong or positive relationship with her father and is somewhat apprehensive towards her brother. If she were to return to Italy she would be returning to an environment that is now unfamiliar to her and a family that is estranged from her.
16.It also appears that [the child] was exposed to the conflict between her parents. She predicts that the conflict would continue and that she and her brother would be responsible for attempting to control the situation and that she would be required to protect the mother. [The child] is anxious about the likelihood of being the target of physical punishment and violence by the father and brother. This situation is likely to pose a risk to her feelings and safety. Therefore, from her view, the impact of returning to Italy will be devastating.
In the judgment of the Italian court of 29 January 2007, reference was made to the questions that had been raised regarding the father’s “parental suitability” and the allegations of violence. The court noted the father had been “acquitted” of the charges in relation to the children and also noted the report of Dr Q (discussed below). The court gave custody of both children to the father.
The father states in his affidavit filed 3 March 2008 that proceedings with respect to the charges against him, were resolved “positively”, and submits this was not only due to the fact that the mother withdrew her complaints. The father referred to two annexures to his affidavit, being orders of the Italian Court dated 2 January 2006 and 23 March 2006. By order of 2 January 2006, the court declared there was no ground to proceed with the charges. According to the order, the father had been charged with “ill treating” his son including through “aggressive and intimidatory attitude, by depriving him of any care and affective support, insulting him systematically, pushing him and beating him”. It was also alleged the father forced the child to eat cakes despite the fact he suffers from diabetes mellitus, and failed to check his sugar levels and administer insulin. It was also alleged he “ill treated” the child E. The father had also been charged with the aggravated charge of behaving cruelly towards the children. By order dated 23 March 2006 the court again declared the charges against the father would not proceed. These charges again related to ill treating both A and E, as well as allegations relating to his behaviour towards the mother and charges relating to returning the children to their mother.
Ms Orwin for the Central Authority submitted that the child was only very young at the time of her parent’s separation and the mother’s affidavit did not reveal any incidents of the child being exposed to violence or that were perpetrated against her.
Ms Orwin also took me to the report prepared in Italy by Dr Q (pg 90 of the father’s affidavit filed 3 March 2008), submitting there is nothing in the report to indicate the child is afraid of her father or does not want to be with him. In the English translation of Dr Q’s report it states:
…when the mother leaves, the girl lets herself go to expressions of affections and joy towards the father. She wishes to see him again and about this, she suggests to my ear: ‘…that Mum will work for the rest of her life and we will stay with dad for ever. We send [Mr Z] on holidays for the rest of his life and we stay with Dad for ever…’ And still whispering to my ear ‘Mum always says bad things about Daddy.’
Dr Q stated that the father had an “affectionate and meaningful” relationship with the children. Following this report, the father was permitted to see the children again.
Ms Orwin submitted there was no evidence that the child was at risk with the father, and that despite the mother’s claims that the father is violent, highlighted the fact that she has agreed to leave her son, A, with the father in Italy. Ms Orwin submitted that if A is not at a grave risk with the father, then neither would E.
The Central Authority acknowledged that if the child was ordered to return, there would be some disruption and anxiety caused to the child. However, counsel referred me to the previously quoted remarks of the High Court (Gaudron, Gummow and Hayne JJ) in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081 at [45]:
That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
I am not satisfied on the evidence before me that there is a “grave risk that the return will expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” I note the mother’s allegations of past violence with respect to the children. However, given the findings of the court in Italy and the mother’s actions in leaving her other child with the father in Italy, I am not prepared to find there is a grave risk to the child if she was to be returned.
Child objects to her return – reg 16(3)(c)
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views;
The mother also submits that this sub-regulation applies to E.
There are four steps to consider in relation to this ground of exception, namely:
i)Whether the child objects to their return;
ii)Whether the objection shows the requisite “strength of feeling”;
iii)Whether the child has attained an age and degree of maturity for it to be appropriate for the court to take these wishes into account; and
iv)The Court must then exercise its discretion whether or not to order the return of the child.
The objection of the child needs to be an objection which “shows a strength of feeling beyond mere expression of a preference or of ordinary wishes” and the relevant objection is an objection to the return to their country of habitual residence, not to a particular person with rights of custody. The purpose of the return is to allow the courts of the country in which the child is habitually resident to determine the dispute:
The relevant objection is an objection to being returned to the country of habitual residence for the purposes of the Regulations, not to live with a particular parent. There may be cases where those two matters are so linked that they cannot be separated but this is not such a case. (Director General, Department of Community Services v Crowe (1996) FLC 92-717)
The relevant time for consideration of the child’s objections is at the time of the hearing. In Agee and Agee (2000) FLC 93-055, the Full Court stated at [61]:
The fact that this necessarily means that the Court may receive evidence of a child’s view which had developed during the period since the wrongful removal or retention is merely a further factor for consideration by the trial Judge to be weighed in the assessment of evidence concerning matters relevant to reg 16(3)(c).
As earlier alluded to, Ms Orwin raised some concerns that the Family Consultant’s interview with the child was conducted initially in the presence of the mother, that there is nothing to indicate the mother left the room to allow the child to be interviewed alone and the report was therefore “tainted” in some way. Ms B does refer at [7] of her report to the fact that “[The child] was encouraged by both the mother and report writer to ask for clarification if she did not understand but she appeared to understand and communicate her thoughts and feelings very well throughout the interview.” Although it is not clear whether the mother was in fact present during the interview or not, I do not consider there is anything apparent in the report to indicate the child’s views were in any way influenced by her mother. In any event, as I indicated to Ms Orwin at the hearing, neither party sought to call Ms B to address any issues regarding her report.
Ms Orwin also submitted that the interview took place 18 months after the child had left Italy, and that the report referred to the child’s fear of losing her relationship with her mother and Mr Z, rather than a fear of returning to Italy to be with her father and brother. Ms Orwin also submitted that Ms B did not adequately address the degree of the child’s objection and the report does not qualify the level of the child’s wishes to the necessary level. As I indicated at the hearing, however, I do not accept this view. Ms B clearly indicated the child had strong objections to her return and concluded the impact of her returning would be “devastating”.
The mother submitted that it is evident, although not expressly stated by the report writer, that the child’s views are balanced and credible and that she clearly does not wish to go back.
Turning to the Family Report, the Family Consultant states:
11.[The child] clearly and firmly states that she did not want to go back to Italy and that she wishes to stay here in [the Northern Territory]. She believes that if she went back to live in Italy she would not see her mother and [Mr Z] again, whether or not they were living in Italy or Australia. [The child] believes that her father would not let her see them because he thinks they will keep her.
…
13.[The child] became upset and teary when talking about returning to live in Italy. She stated that she would “cry to death”.
…
14.[The child] clearly expressed a strong objection to returning to live in Italy. Her view is primarily based on the fear of the loss of relationship with the mother and step-father. It appears likely that [the mother] and [Mr Z] would not return to Italy if this matter was to be determined there. The loss of these secure and supportive relationships would be detrimental to [the child]’s well-being.
I am satisfied on the unrefuted evidence of Ms B that the child’s objection shows a strength of feeling beyond mere expression of a preference or of ordinary wishes. The Family Consultant noted the child said she would “cry to death” if required to return and became upset and teary when talking about her return. The child appears to be aware of the implications of her views. As noted by the Family Consultant at [10], the child believes her father misses her and “feels sad without her”, but she “does not like him and does not want to talk with him on the telephone.” She is of the view that if she returns to Italy she will not be able to see her mother or Mr Z, and fears the loss of these relationships. Given the mother’s stated position that she will not return to Italy in the event that the child is ordered to return, her fears in that regard appear well justified. I consider the child’s objection is beyond a mere preference or ordinary wish.
The next question for my consideration is whether the child is of sufficient age and maturity for it to be appropriate to take her view into account. The child is 9 years of age.
Age by itself is not an indicator of maturity,[3] and an analysis of relevant cases shows that there is no set age at which it is considered appropriate to take into account the views of a child. Kay J, writing extrajudicially, in ‘The Hague Convention- order or chaos?” (2005) 19 Australian Journal of Family Law 245 at 276 concluded (after discussing various cases dealing with a child’s age and maturity) that:
Therefore it seems there is no settled agreement among courts internationally or even within courts domestically, as to the age at which a child’s wishes should be taken into account.
iii)[3] CCH Family Law and Practice at 24-410 See Re S (Minors) [1994] 1 Fam LR (Eng) 819
In S v S (Child Abduction) (Child’s Views) [1992] 2 FLR 492 and Re R (Child Abduction) [1995] 1 FLR 716 Balcombe LJ discussed the age and maturity of a child in the context of objection in Hague Convention cases. In S v S (Child Abduction) (Child’s Views) (supra) at 500, Balcombe LJ commented:
…She also asked us to lay down guide-lines for the procedure to be adopted in ascertaining the child’s views and degree of maturity. We do not think it is desirable that we should do so. These cases under the Hague Convention come before the very experienced judges of the Family Division, and they can be relied on, in those cases where it may be necessary to ascertain these facts, to devise an appropriate procedure, always bearing in mind that the Convention is primarily designed to secure a speedy return of the child to the country from which it has been abducted.
(b) It will usually be necessary for the judge to find out why the child objects to being returned. If the only reason is because it wants to remain with the abducting parent, then this will be a highly relevant factor when the judge comes to consider the exercise of discretion.
(c) Article 13 does not seek to lay down any age below which a child is considered as not having attained sufficient maturity for its views to be taken into account. Nor should we.
In Re R (Child Abduction) (supra) Balcombe J confirmed at 729 that “... English courts have refused to lay down any chronological threshold below which a child’s objections will not be taken into account.” Balcombe J referred to authorities and concluded
[t]hese cases to me merely illustrate the obvious, that the younger the child is the less likely is it that it will have the maturity which makes it appropriate for the court to take its objections into account.
At this point, I should refer to a passage in the judgment of Waite LJ in Re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819 at p 827:
‘When Art 13 speaks of an age and maturity level at which it is appropriate to take account of a child’s views, the inquiry which it envisages is not restricted to a generalised appraisal of the child’s capacity to form and express views which bear the hallmark of maturity. It is permissible (an indeed will often be necessary) for the court to make specific inquiry as to whether the child has reached a stage of development at which, when asked the question ‘Do you object to a return to your home country?’ he or she can be relied on to give an answer which does not depend upon instinct alone, but is influenced by the discernment which a mature child brings to the question’s implications for his or her own best interests in the long and short term. It seems to me to be entirely permissible, therefore, for a child to be questioned (even at the preliminary gateway stage) by a suitably skilled independent person with a view to finding out how far the child is capable of understanding – and does actually understand – those implications.’
Balcombe LJ continued at 731:
In exercising that discretion, it is clear that the policy of the Convention and its faithful implementation by the courts of the countries which have adopted it, should always be a very weighty factor to be brought into the scales, whereas the weight to be attached to the objections of the child or children will clearly vary with their age and maturity. The older the child, the greater the weight; the younger child, the less weight. (Emphasis added)
From Australian authorities it can be seen whether a child is of sufficient age and maturity for their views to be taken into account also depends on the individual facts of each case. For example, in Police Commissioner of SA v Temple (1993) FLC 92-365), Murray J was not satisfied that a 9 year old girl was of sufficient age and maturity “…for her wishes and attitudes, even if they could be categorised as objections, to give the weight required to tip the scales so as to bring into operation the exception provided by reg. 16(3)(c).” (at 79,830) (See also Johnson & The Police Commissioner of SA and Child’s Representative [2001] FamCA 384 (unreported).
However, in both Agee and Agee (supra) and Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 the objections of 9 year old children were taken into account by the Court, although, Lindenmayer J indicated in Thorpe that the views of the child were “certainly not decisive”, however (at 84,678). (See also Director General Department of Community Services and M and C (1998) FLC 92-829).
It is evident from the above sample of cases that whether it is appropriate to take into account the child’s views is dependent on the individual facts of the case and the individual child.
As highlighted by Ms Orwin, the Family Report does not specifically address the child’s maturity. However, the report writer, Ms B is an experienced court counsellor and is aware of the requirements of reg 16(3)(c). I am satisfied that in reaching her conclusion that the child expressed a “strong objection”, Ms B considered it was appropriate to take this view into account given the child’s level of maturity. Ms Truman for the mother submitted that the child is well aware of the implication of her saying she does not want to return to Italy.
The Family Consultant commented that the child:
…presented as a delightful young girl. She was initially somewhat shy but soon appeared to relax and feel comfortable. Her English was excellent and she spoke without an accent. [The child] was encouraged by both her mother and the report writer to ask for clarification if she did not understand but she appeared to understand and communicate her thoughts and feelings very well throughout the interview.
Ms Truman also referred me to the report by Dr Q in Italy prepared in 2005 pursuant to court order (attached to the affidavit of the father filed 3 March 2008). In the report (as translated), Dr Q states in relation to the child:
Intellectual level is a standard one. Behaviour is a standard one. The girl seems to be a little adultised with respect to her age either in the way she dresses or in her attitudes. It seems that she too undergoes the emotions of anger, still present, towards [the father], in the mother, but when the mother leaves, the girl lets herself go to expressions of affections and joy towards her father.
Although prepared 2 ½ years ago, it does provide some insight into the child’s level of maturity at that time, which not surprisingly has increased in the intervening two year period.
As indicated earlier, I am satisfied that the child’s views do show a strength of feelings beyond mere expression of a preference or of ordinary wishes. Although only 9 years of age, I also consider that the child is of sufficient level of maturity to take her views into account. She is aware of the consequences of her view, acknowledging that her father “misses her and feels sad without her”, but that “she does not like him and does not want to talk with him on the telephone.” The child seems to be very aware that if she were to return to Italy it is unlikely the mother would return also, and, as commented by the Family Consultant, the child fears the loss of the relationship with her mother and step-father. It is therefore appropriate to take the child’s view into account.
Exercise of discretion
Although the requirements of reg 16(3)(c) have been satisfied, the court maintains a discretion as to whether or not to order the child’s return. This is evident from the wording of subregulation 3 which states the court may refuse to order the child’s return.
The exercise of this discretion has recently been discussed by the Full Court in Tarritt & Director- General, Department of Community Services [2008] FamCAFC 34 where Bryant CJ and May J stated at [40]:
40.As to how we should consider the exercise of discretion, we again make reference to De L v Director-General of Community Services and Anor (supra) at p.661:
… However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the discretion is therefore, unconfined except insofar as the subject matter and the scope and purpose of the [regulations] enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
41.In this case the child arrived in Australia on 3 June 2006. It was intended that she return to America on 1 August 2007. The length of time the child has lived in Australia as a result of an agreement between the parents is not an insignificant fact in this matter. Baroness Hale said In Re M (FC) & Anor (FC) (Children) (FC) [2007] UKHL 55:
42. In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.
43.Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.
44.That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.
…
46.In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of Article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.
42.While appreciating the spirit and purpose of the Convention and the arrangements between the parents formalised by a court order, it is our view that these matters must be balanced against other significant factors in this case. These include the strongly expressed wishes of the child and the grave concerns arising from the nature of the feelings expressed by the child contained in the most recent report. It is the family consultant’s opinion that the child is of an age and maturity, and that her views should be given some weight.
43. In the circumstances which have arisen since the judgment and taking into account the opinion of the family consultant we conclude that the objection in terms of reg 16(3)(c) is made out and we would also exercise our discretion to refuse to make the order returning the child.
In this case, being some two years after the child arrived in Australia and one year since the father filed his Application through the Central Authority, I exercise my discretion not to order the child’s return on the basis of the child’s objection, an objection expressed with considerable strength of feeling and by a child assessed as being relevantly mature.
Conclusion
As indicated earlier in my reasons, I have found the father did not have “rights of custody” with respect to the child at the time of her removal and therefore the child’s removal from Italy was not wrongful. However, I have proceeded to consider the further provisions under the regulations in the event I am wrong in this conclusion.
The objects of the Convention are to secure the prompt return of children to their country of habitual residence to enable the courts in that country to determine the dispute between the parties. However, in this case the requirements of the regulations (namely that the removal was wrongful) are not met and return cannot be required. However, in the event the removal was wrongful, I would not order the child’s return. The mother has established pursuant to reg 16(2) that the child is now settled in Australia, having lived in, attended school at and been part of the community in the Northern Territory for just over two years. I would also exercise my discretion not to order the child’s return pursuant to reg 16(3)(c), namely that the child objects to her return, it being appropriate to take this objection into account given the child’s age and level of maturity.
I therefore dismiss the application of the Central Authority seeking the child’s return to Italy.
In her Cross-Application the mother seeks other orders. I have dealt with those with which I may relevantly deal pursuant to the regulations. It is not appropriate within that forum to grant the other orders she seeks. Separate proceedings under the Family Law Act would need to be taken with service and all other elements of due process being afforded the father.
I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
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