O'CALLAGHAN (Commissioner, Western Australian Police) and B

[2005] FCWA 9

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	O'CALLAGHAN (Commissioner, Western Australian Police) and B [2005] FCWA 9
CORAM:	PENNY J
HEARD:	24 JANUARY 2005
DELIVERED:	28 JANUARY 2005
FILE NO/S:	PT 6267 of 2004
BETWEEN:	KARL JOSEPH O'CALLAGHAN

(Commissioner, Western Australian Police)

Applicant

AND

B

Respondent/Father

Catchwords:

Hague Convention - rights of custody - intolerable situation - order made for return of child

Legislation:
Family Law (Child Abduction Convention) Regulations 1986

Category Not Reportable

Representation:
Counsel:

Applicant:	Ms C Conley
Respondent:	Self Represented Litigant

Solicitors:

Applicant:	State Solicitor's Office
Respondent:	Self Represented Litigant

Case(s) referred to in judgment(s):

Brooke v Director General, Department of Community Services (2002)

29 FamLR at 121

C v C [1989] WLR 654

DP v Commonwealth Central Authority; JLM v Director –General NSW

Department of Commun (2001) 180 ALR 402

DP v Commonwealth Central Authority; JLM v Director –General NSW

Department of Commun (2001) 180 ALR 402 Kirby J at 427

DP v Commonwealth Central Authority; JLM v Director–General NSW

Department of Commun (2001) 180 ALR 402

Gosponer v Direcvtor-General of Community Services Vic (1989) FLC

92-001

McCall and McCall; State Central Authority (Applicant); Attorney

General of the Commonwealth (Intervenor) (1995) FLC 92-551

1 Before me is an application by the responsible Central Authority seeking the return of the child, K R B, born March 1994, to the United States of America ("USA"). The application is brought pursuant to Regulation 14(1) of the Family Law (Child Abduction Convention) Regulations 1986 (the Regulations) which gives effect in Australia to the Convention on the Civil Aspects of International Child Abduction (the Convention).

2 On 20 June 2000, the father, Mr B, and the mother, D T(now D W), entered into an agreement regarding the care of their child K. It was agreed the father was to have sole custody of K and the mother was to have access as set out in a parenting time schedule. The agreement stipulated the father was to continue to reside within a particular County at least until K had completed 6th grade elementary school. If either parent travelled outside of the State with the child, they were to keep the other parent informed of travel plans and contact details where the child could be reached.

3 The parties have been involved in extensive litigation since making the agreement. The most recent motions were filed on behalf of the mother on 27 February 2004, seeking to clarify and/or enforce parenting time and for modification of custody. On 12 march 2004, the father filed a response to the motions and the matter was set down for a hearing on 28 September 2004. The father then filed numerous other pleadings, including an application to vacate the hearing date.

4 The father failed to attend the hearing on 28 September 2004 and orders were made granting sole custody to the mother and access to the father. The orders were prepared and signed that day. The mother then attempted to locate K, however, she was not at school and had not been for several days. She later learned from his parents that the father had removed K from the State.

5 The father departed the USA on 27 September 2004 and arrived in Australia with K on 29 September 2004. On 6 December 2004, the mother filed an application under the Regulations to have K returned to the USA. K was apprehended in Perth by the Department of Community Development on 17 December 2004 and was subsequently placed in foster care. Upon being made aware of K’s whereabouts the mother travelled to Perth and K is now residing with her in Perth, pending the determination of this application.

6 Both Australia and the USA are signatories to the Convention, therefore, Australia has an obligation to return K, if she has been wrongfully removed. Regulation 1A(2) sets out the purpose of the Regulations. It provides:

“These Regulations are intended to be construed: between judicial or administrative authorities (as the case may be) of convention countries.”

(a) having regard to the principles and objects mentioned in
the preamble to Article 1 of the Convention;
(b) recognising, in accordance with the Convention, that the
appropriate forum for resolving disputes between parents
relating to a child’s care, welfare and development is
ordinarily the child’s country of habitual residence; and
(c) recognising that the effective implementation of the

7 The objective of the Convention is to secure the prompt return of children who have been wrongfully removed, or who are being retained wrongfully, so that issues of custody and access may be dealt with according to the laws of their place of habitual residence. The obligation to make an order for return, however, is qualified by the existence of a discretionary power to refuse such an order in the circumstances stated in Regulation 16(3): DP v Commonwealth Central Authority; JLM v Director –General NSW Department of Commun (2001) 180 ALR 402.

Was K’s removal wrongful?

8 Regulation 16(1A) defines a child’s removal 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) 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.”

9 K is only 9 years old and has resided in the USA since birth. It is not disputed that her habitual residence is the USA. The father says K’s removal was not wrongful because the mother was not exercising her rights of custody, and he had sole custody of K at the time of leaving the USA. He says he had the sole power to make decisions regarding K’s place of residence.

10 The mother submits that at the time of removal she had rights of custody in relation to K pursuant to the orders made by Judge Bottger of the District Court, in the county and state of USA on 20 June 2000 in accordance with the Parenting Plan agreement. These orders prohibited the father from moving with K outside the County until she completed the 6th grade, providing the mother still resided in that County.

11 At the time K was taken to Australia by her father, K was in the 5th grade and her mother resided in the County. I accept the mother was having parenting time with K immediately prior to her removal, as set out in the Parenting Plan agreement, even if she did not exercise it on every occasion as alleged by the father. She was therefore exercising her rights of custody.

12 In C v C [1989] WLR 654 the Court held that the “rights of custody” included the right of a person to withhold consent to a child leaving a country. In this case, the mother’s consent was required before K could leave the County as she had not reached the 6th grade. The father left the USA without the mother’s knowledge or consent and went into hiding.

13 The father was well aware that he was prohibited from moving K from the County in the absence of a court order varying the Parenting Plan. He had previously sought to be released from this obligation, however, Magistrate Westbrook on 29 January 2002 had dismissed his application.

14 Whilst I am satisfied the mother had custody rights and was exercising them prior to K’s removal, in my view, the County Court also had custody rights over K which prevented her from being removed. A hearing was underway to decide who would be K’s custodial parent. The court had not given authority for her to be removed. In Brooke v Director General, Department of Community Services (2002) 29 FamLR at 121 the Court held:

“where a foreign court is properly seised of an issue as to where a child should reside and where, whilst proceedings are pending the child is removed from the jurisdiction of that court without the consent of that court, 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 custody rights include the right to determine the place of residence of the child.”

15 I am, therefore, satisfied that:

• before her removal K was habitually resident in the USA;

• both her mother and the County court had rights of custody;

• the mother was exercising her custody rights, as was the County court; and

• both her mother and the court were likely to continue to exercise those rights.

16 In these circumstances I find that K’s removal from the USA

was wrongful.

17 Regulation 16(3) provides circumstances in which an Australian Court may refuse to order the return of a child. These are:

“(a) the person, institution or other body making application
for return of a child under regulation 13:

(i) was not actually exercising rights of custody when the child was removed to, or first retained in Australia and those rights would not have been exercised if the child had not been so removed or retained; or

(ii) had consented or subsequently acquiesced in the

child being removed to, or retained in, Australia; or

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

(c) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s 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.”

18 The father has asked the Court to exercise its discretion not to return K on the basis that:

• there is a grave risk that the return of K to the USA would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and

• the return of K to the USA would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

19 The father bears the onus of proof of establishing one of the discretionary grounds for declining to order the return of the child: DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Commun (2001) 180 ALR 402 at 414.

Psychological/physical harm or intolerable situation

20 The father must show K’s return to the USA and not an individual, will expose her to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation. He therefore must demonstrate that the systems of law and child welfare in the USA are not able to adequately protect K upon her return. Particular criticisms of the other parent are not relevant.

21 The father alleges the mother has:

• made allegations of him sexually abusing K which are unfounded;

• not paid child support;

• withheld K from contact on Father’s Day;

• committed perjury in the American Courts;

• assaulted him;

• failed to take K to school;

• moved residence frequently; and

• the mother’s ex-boyfriend has assaulted K.

22 He says for K to return to the USA and be subjected to this conduct would create an intolerable situation for her. These are all matters which would be taken into account by a court in determining which parent should have custody of K. It is not this Court’s role when determining an application made pursuant to the Regulations to conduct a trial regarding where and with whom K should reside. The issue to be determined is whether K should be returned to the country where she was habitually resident.

23 The Full Court in Gosponer v Direcvtor-General of Community Services Vic (1989) FLC 92-001 indicated the word “intolerable” indicates the gravity of the situation that must face the child if returned and the level of harm envisaged. Successful establishment of this exception is relatively rare.

24 In DP v Commonwealth Central Authority; JLM v Director– General NSW Department of Commun (2001) 180 ALR 402 the Court held what has to be established is a “grave” risk of exposure to future harm and a court will not be persuaded without some clear and compelling evidence.

25 In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, at 1154 it was held:

“There is...an established line of authority that the Court should require clear and compelling evidence of the grave risk of harm or other, intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the Court of habitual residence.”

26 In Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478 at 484 the Court stated:

“...the spirit of the convention requires that the best interests of the child should be determined by the courts of the State of habitual residence. Article 13(b) is an exceptional remedy intended to deal with unusual issues of welfare of the child which take the case outside the normal provisions of the convention.”

27 K may suffer some form of psychological harm in being returned to the USA, however, she has already suffered significant harm in being taken from the USA. The allegations made by the father do not fulfil the test of a “grave risk” of future physical or psychological harm occurring to K. The various court orders made in these proceedings in the USA demonstrate the courts in that country are well placed to protect K from any risk of physical or psychological harm.

28 The father has submitted that K will be placed in an “intolerable situation” because he has not received a fair hearing in the past. He claimed various Magistrates were biased against him and did not act in a judicial manner. He pointed to procedural errors that had occurred in the listing of the trial date.

29 The father has been an active participant in the litigation in the USA. He has attended numerous hearings. In some he has been successful in his applications and in others he has been unsuccessful. If he feels aggrieved by an order made by the courts he can exercise his appeal rights under the law of the state. The father is well aware of his appeal rights, having appealed the decision of a Magistrate on one occasion and was successful. He has petitioned to the Governor of the state regarding his “unfair hearings”. In my view there are procedures in place in the court system in the USA which will ensure a proper hearing in relation to the custody of K. The matters raised by the respondent will not create an intolerable situation for her.

30 The father says on 5 October 2004 the mother filed International Parental Kidnapping Warrant charges against him and that he will be arrested should he return to the USA. He says he will therefore not be able to have contact with K. There was no evidence regarding this issue at the hearing. I do not know whether the respondent will be apprehended or that his right to see K will be affected by his return to the USA. In any event, the mother now has orders for custody in relation to K. I am satisfied she will be cared for appropriately upon her return to the USA, even if she is not able to have contact with her father.

Fundamental principles of Australia

31 The provision set out in regulation 16(3)(d) was intended to be invoked on the rare occasion that the return of a child would utterly shock the conscience of the court, or offend all notions of due process: McCall and McCall; State Central Authority (Applicant); Attorney General of the Commonwealth (Intervenor) (1995) FLC 92-551. The father must show the fundamental principles of Australia concerning the subject matter of the Convention do not permit K’s return.

32 There are currently no cases in Australia where this provision has been established, however, in DP v Commonwealth Central

Authority; JLM v Director –General NSW Department of Commun
(2001) 180 ALR 402 Kirby J at 427, Para 1032 stated:

“it may apply where it can be demonstrated that, notwithstanding formal adherence to the Convention, the authorities and officials of the child’s country of habitual residence are corrupt, that due process would be denied to the child or to the custodial parent, or that basic human rights would not otherwise be respected.”

33 The father has failed to provide any evidence of corruption. He was also unable to point to any basic principles under Australian law that would be breached should K be returned to the USA. In the USA issues of flawed processes can be dealt with via an appeal.

34 The father has not established any ground pursuant to Regulation 16(3) which would enliven my discretion to determine whether K should return to the USA.

This being the case, as she was wrongly removed from that
country, she should be returned.

I certify that the preceding [34] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate