Quoc & Quoc
[2007] FamCA 1126
•14 September 2007
FAMILY COURT OF AUSTRALIA
| QUOC & QUOC | [2007] FamCA 1126 |
| FAMILY LAW – CHILDREN – Best Interests – Father with equal parental responsibility requesting court permission to take children overseas to a non-convention country in school holidays mainly for cultural awareness purposes - Relevant risk assessment factors – Application refused on best interests grounds including legal system disparity and risk of non-return even with substantial security deposit. |
| M v M (1988) 166 CLR 69 |
| APPLICANT: | MR QUOC |
| RESPONDENT: | MRS QUOC |
| FILE NUMBER: | BRF | 2737 | of | 2006 |
| DATE DELIVERED: | 14th September 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | CARMODY J |
| HEARING DATE: | 30th August 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hodges |
| SOLICITOR FOR THE APPLICANT: | Bronwyn Hay & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Hogan |
| SOLICITOR FOR THE RESPONDENT: | Ryan Kruger Lawyers |
Orders
That the order made in the Family Court of Australia at Brisbane on 30th August 2007 be discharged;
The FATHER’s application for the children, a son born in June 1997 and a daughter born in October 1998, to travel to the Solomon Islands is dismissed;
The Solicitors for the MOTHER provide written submissions in relation to any application for costs arising and in relation to the previously reserved costs to the Solicitors for the FATHER and to the Court by close of business on 5th October 2007;
The Solicitors for the FATHER provide written submissions in relation to any application for costs arising and in relation to the previously reserved costs to the Solicitors for the MOTHER and to the Court by close of business on 19th October 2007;
The Solicitors for the MOTHER provide any written submissions in reply by close of business on 29th October 2007.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Quoc & Quoc.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 2737 of 2006
| MR QUOC |
Applicant
And
| MRS QUOC |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a child related proceeding arising from the breakdown of a marital relationship between parents equal sharing parental responsibility and parenting time in Australia under the terms of a consent order signed on 30 August 2007.
The parties have consented to the matter being conducted under the less adversarial provisions of Div 12A of the Family Law Act.
The only contested issue left to be decided[1] is whether an order should be made relieving the father of the obligation in s 65Y(1) not to take or send either of the two children of the marriage, aged 11 and 9, to the Solomon Islands which is not a signatory country to the Hague Convention on the civil aspects of international child abduction. It is an offence punishable by a maximum of up to three years imprisonment under the Family Law Act 1975 (Cth) for a parent to remove a child to any place outside Australia without the consent of the other or court order. Otherwise, there is no general legal principle stopping a parent from taking a child who is an Australian citizen to a non-Hague country.
[1] A related application to take the children to Hong Kong in October this year for a family celebration has since been abandoned.
It is common ground that because of the generous ambit of s 64B(2)(i), an order made under the proviso in s 65Y(2) is a parenting order and that the paramountcy principle in s 60CA applies accordingly.[2]
[2] cf. Kwon v Lee (2006) FLC 93-287; Loh and Kalliou [2007] FamCA 444.
The context
The father wants the children to visit their paternal grandparents and extended family in the Solomon Islands in school holiday periods to maintain familial and cultural ties. As first sight this is a perfectly reasonable and rather innocuous request. However, the children’s mother is opposed because of alleged safety concerns and abduction fears. She contends that to grant the application would be inconsistent with the children’s overall welfare and best interests.
In reply the father claims that the mother is relying on spurious and melodramatic unsubstantiated “concerns” as an excuse for unreasonably withholding consent.
Agreed or uncontested facts
The children were both born in Australia as a result of deliberate decisions made by the parents to take advantage of the education and health systems here.
The children hold dual Australian and Solomon Island passport as do the parents.
The children have spent all but two years of the lives living in the Solomon Islands. They have members of the extended maternal family resident in Australia. However, all on the father’s side, except for one aunt who lives in Sydney, and most of the mother’s relatives, reside in the Solomon Islands.
The parents currently share month about with the children and live in close proximity to each other in the W area. They regularly travel to and from Australian and the Solomon’s on business.
The mother is a citizen of the Solomon Islands and has residency status in Australia.
The father is an Australian citizen with who is habitually resident in the Solomon Islands. He is a director of a family business in Honiara established by his grandfather in 1918. The family is highly respected in the Solomon Islands.
The father has a permanent residence in the Solomon Islands and owns business and private assets there. The family compound is well protected and surrounded by high security gates and a full-time security employee as well. He also has more than $3.3 million invested in Australian based property trusts. His family and business relationships are being adversely affected by the considerable amount of time he currently spends in Australia for parenting time.
The father considers his real home is in the Solomon Islands even though he says he has insignificant real property there compared to Australia and his business interests in Honiara are neither significant nor extensive.
The father is receiving Centrelink payments in Australia because he cannot generate income from the Solomon Islands while he is here. He says his reduced income affects the best interests of the children.
The mother lives in the unencumbered former matrimonial home while the father pays $375 a week in rent with government assistance.
The children attend private language tuition supported by both parents.
The parties began cohabitation in the Solomon Islands in 1992, married in 1997 and separated during a family holiday in Australia in January 2006. They returned to the Solomons in February. In April 2006 the husband brought the children back to Brisbane for the Easter school break. They were joined by the wife after rioting broke out in the Solomon Islands. The parents resided separately under the one roof at W until September 2006.
The children were enrolled at W School and have remained there ever since. The father returned to the Solomons for business reasons on 9 September 2006. The wife arrived in Honiara the following week.
The father commenced divorce and custody proceedings in the High Court of the Solomon Islands on Friday, 22 September 2006 apparently because he believed the mother was cohabitating with another man. The next day the mother was involved in a fatal traffic accident as a passenger on 23 September 2006. She was served with the husband's papers at the police station on 25 September 2006. She promptly responded by instituting proceedings in this registry and returning immediately to Australia.
On 29 September the Court in the Solomons made an ex parte interim custody order in favour of the father. However, Watt J restrained the parties from removing the children from this jurisdiction and granted the mother sole use and occupation of the W home on 5 October 2006.
The father applied for the matter to be listed for final hearing in the Solomon Islands on 20 October 2006 but this was adjourned until 1 December 2006. The father arrived back in Brisbane on 21 October. An attempt by the mother to stop the proceedings in the Solomon Islands failed on 9 November 2006. On 1 December 2006 the Solomon Islands proceedings were adjourned to the New Year.
Orders restraining the father from taking further steps to prosecute custody or property settlement in the Solomon Islands were made by the Family Court of Australia on 11 December 2006.
On 31 January 2007 the father unsuccessfully applied for interim orders permitting him to relocate the children’s residence to the Solomon Islands.
The father firmly (and I find genuinely) believes that post-divorce parenting and property dispute should be resolved under the laws of the Solomon Islands.
There remains a high level of conflict between the parents over both child and property related issues. The father has told others that he would prefer to spend all his money on solicitor’s fees than see the mother receive an unreasonable property settlement. The father wrote to the mother on 1 February 2007 telling her that if she wanted to challenge him he would “…destroy the trust and…leave the kids with nothing and in twenty years time [she] can do the explanations.” The mother has also sent abusive emails to the father on a range of issues in recent times.
Although the father says they handled them well, the children have experienced periods of instability during civil unrest in Honiara in 2000 and 2006. In June 2000 ethnic tension forced the mother and children to leave Honiara until January 2001.
In April 2006 there were two days of riots in Honiara. The 2006 uprising was short-lived and ultimately did not endanger personal safety.
Some elements of the security situation remain fluid ever since.
The Australian Department of Foreign Affairs and Trade has issued a travel advice warning current to Tuesday, 14 August 2007 for the Solomon Islands advising Australian travellers to exercise a high degree of caution.
The Solomon Islands Parliament resumed sitting on 7 August 2007. There remains some potential for further ethnically targeted violence, particularly in the capital Honiara, because of a possible no confidence vote in the government. A high degree of personal security after dark is recommended.
Hercules aircraft are on standby for evacuations if required.
It is implicit in the husband’s material that he accepts that being separated from the mother longer than his allotted parenting time would be inimical to the welfare and best interests. That, in any event, is beyond argument.
The rival cases
He would prefer them to grow up in Honiara in a close knit cultural community and extended family. He envisages his only son taking his rightful place in the family business when the time comes. To him Australia is mainly a place for investment or recreation. It is not where Solomon Islander children should be raised. He has, however, reluctantly agreed to stay in Australia and share an equal shared parental responsibility and parenting time with the mother in Brisbane. The father understandably wants the opportunity to enrich and extend his children’s life experiences beyond the shores of Australia. What he wants to but cannot currently do is to take them to the Solomon Islands for short school holiday visits for up to a month at a time. He says that this is impossible for the children to be able to maintain a relationship with both sides of the family and their cultural heritage without physically travelling to the Solomon Islands. His parents are said to be too old to travel.
The father deposes in his affidavit sworn 17 August 2006, to be willing to return the children to Australia if only because they know how important their mother is to the children and the harm it would cause to deprive them of her role.
The mother suspects the father’s motives and pleads against giving him the opportunity to withhold them. It is this opportunity, and only this, she says that stands in the way of the father’s true intention which is to stay out of the jurisdiction permanently
The effect of allowing the application at this time she asserts would expose the children to physical threats to their safety and welfare and deprive them of having any parenting time with her. The promise of a return to the jurisdiction, she says, would not be honoured and no security could realistically entice the father to return them. Regardless of what he currently intends and despite assurances to the contrary, the degree of risk that the father would choose not to return is too high, on the mother’s case, for the court to take with her children. She argues that given comments he has made to the mother and others, the temptation for the father to walk away from significant property assets in Australia, and retain the children in the Solomon Islands is very strong. The father’s ties to Australia are not strong enough according to the mother, to stop him from giving into the temptation not to return them. Finally, she submits, because the country of travel is not a signatory to the Hague Convention on child abduction even a slight risk is too much.
She also points to the conflictual nature of the parties’ post-separation relationship as an indication that there is virtually no incentive for the father to return the children to Australia.
The father contends that the Solomon Islands is a secure environment for the children to spend their school holidays with peace and normality having been largely restored since 2003. He rejects the mother’s safety and abduction objections as baseless. In particular, he says that she knows from personal experience or at least has no valid reason not to believe Honiara to be a safe place not only for herself but the children. The husband points out that the mothers frequent trips to Honiara undermine the credibility of her alleged concerns for the children’s safety.
More specifically, he denies that the children were forced to flee Honiara in 2000 and 2006. On his version the parents made the decision to leave in 2000 and says that the reason the children have remained in Australia was because of the litigation and terms of the consent order not political instability in the Solomon Islands.
The father agrees that the political and social situation in the future in the Solomon Islands is uncertain but no more so than anywhere else in the world. He denies ever having put the children in danger and swears never to do so.
The mother says she intends to remain living in Australia. The father challenges this. He believes that the mother’s business in the Solomon Islands is much bigger and more profitable than her Brisbane business and that she is going to marry a Solomon Island resident in December 2007.
In response to the non return allegation the father denies any ulterior motive in obtaining the children’s passports and permission to leave the country. He says it is not a pretext or expedient devise to separate them from their mother or connections in Australia. He says that there is no reasonable ground for believing that he would do such a thing. He relies on his character, reputation for integrity and compliance with previous court orders as well as his unwillingness to do anything to tarnish the family name or bring his father into disrepute as signs that he is a safe and trustworthy pair of hands.
The mother accuses the father’s brother of trying to remove the children from the mother’s household at W in September 2006 and says this incident aggravates the risk that the father would withhold the children in a non-Hague country. The alleged abduction attempt is plausibly and innocently explained by the father as arising out of his unexpected failure to return from a trip to the Solomon Islands for a week or so because of her involvement in a fatal car accident. I cannot make definitive findings about the prior abduction attempt on the strength of the evidence put up by the mother in the face of the father’s unchallenged explanation. I will therefore exclude it as a risk indication.
The mother has concerns as to the integrity of the Solomon Islands legal system, especially since the recent appointment of a fugitive from Australian justice as the Attorney-General of the Solomon Islands.
The mother’s description of the father’s own lawyer in the Solomon Islands, as “Solomon Islands strong man […] who applied gun point coercion to the democratically elected Prime Minister” is denied by the father on relevance rather than on truth grounds. However, the father says there is no reasonable basis for the mother’s asserted lack of faith in the Solomon Islands’ legal system. I agree and will not take it into account against him.
The principles to be applied
The consent orders imply that each of these parents believes that spending equal time with the other is in the best interests of the children.
The legal effect of a parenting order providing for equal shared parental responsibility is that subject to any other specific order to the contrary it is taken to require a decision about a major long-term issue in relation to a child to be made jointly and for them to consult and make a genuine effort to reach consensus. A major long-term issue includes living arrangements that make it significantly more difficult for the child to spend time with a parent.
The terms of s 65Y(1) make it clear that the international movement of children affected by a domestic parenting order is to be court supervised and regulated in those cases where agreement cannot be reached between the parents. This is partly to maintain the integrity of the administration of family justice in this country but, most importantly, is intended to protect the best interests of the children and support any adult with the benefit of a parenting order in his or her favour.
The relevant power is a practical aid to the enforcement of jurisdiction and not intended to frustrate the legitimate interests or reasonable expectations of parents. Nonetheless, the views and interests of the parents but others are also relevant but must give way to those of the child in the event and to the extent of any irreconcilable conflict.
Caution is called for when overseas travel orders are sought. The nature and extent of any restraint on parental autonomy depends on the degree of risk and the likely consequences. The scope of the enquiry includes consideration of the consequences for the applicant parent in refusing to grant the orders compared with the detrimental effect on the respondent (and the children) of granting one. Refusing an order permitting the father to take his children to an overseas holiday destination in their best interests must be based on a demonstrable need to protect them or prevent frustration of court orders by the applicant rendering them virtually useless to the respondent.
The fundamental question is whether there is sufficient evidence to justify what amounts to an interference with parental autonomy. Are the mother’s proposed orders really necessary? Are they supported by enough circumstantial facts supportive of a rational and reasonable inference that the father would embark on a course of action which, irrespective of intention, is likely to endanger the physical safety or emotional and developmental welfare of his children by taking them to a dangerous country and/or retaining them for his own proposes to the exclusion of the mother?
The applicable test
The mandatory factors for determining what is in a particular child’s best interests are set out in s 60CC. The primary considerations are the benefit of the child having a meaningful relationship with both parents and the need to protect him or her from relevant harms. The most relevant of the 13 additional considerations are: the children’s relationships with each parent and others including grandparents and relatives; the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship with the other and the child; the likely effect on the child of any separation from either parent or significant other person; the attitude to the child and parental responsibilities demonstrated by each parent and the preferability of making an order least likely to lead to further litigation.
Another critically important question is whether the current orders enable the children to adequately enjoy their Solomon Islander and ethnic cultures and maintain their previous lifestyles and traditions.
In deciding what is and is not in the best interests of the child judges of this court are frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, would have a detrimental impact on a child’s welfare. The existence and magnitude of the risk is a fundamental matter to be taken into account in deciding parenting related issues.[3]
[3] M v M (1988) 166 CLR 69 at 77-78.
Clearly in exercising its supervisory jurisdiction with respect to parenting orders and overseas travel the court must weigh short-term benefits against long-term detriments and assess the relative risks involved. Any intervention should be kept to a bare minimum and not unduly limit or prejudice proper parenting.
A secondary question is whether any non-return risks can be minimised or managed by appropriate undertaking, a surety deposits or the like to such a level that taking them is worth it in the best interests of the child(ren).
The safety issue
I am acutely mindful of the need not to take unreasonable or unjustified risks with the safety or welfare of other peoples’ children. At the same time judges have to be courageous enough to make orders in good conscience and not be overwhelmed by the fear of criticism or ‘bluffed’ by exaggerated risks.
There are obvious benefits to the children in travelling to the Solomon Islands for a short visit on holidays. The mother does not deny them. Nonetheless, as important as those benefits are, they may still be outweighed by safety considerations.
An affidavit filed by Ms Hay, the father’s lawyer, confirms that the time she spent in the Solomon Islands from 5-10 August 2007 was uneventful. She confirms that the family business is a substantial one employing 40 staff and that the family residence it built high on a hill overlooking the harbour.
Ms Hay was informed by the Secretary to the Australian High Commissioner that no unrest was expected despite an anticipated vote of no confidence in the government. He observed that there were numerous Australian children living in this community.
A local school teacher informed Ms Hay that she did not see any safety problems there.
The head of the Regional Assistance Mission to the Solomon Islands (“RAMSI”), Mr E, reported no loss of life in the island nation since 2000. RAMSI supports the Regional Police Force. There have been no fire arm incidents or any significant security issues since the two day riot in April 2006 which is the subject of an ongoing commission of enquiry.
Mr E said that if he has children that were ten and nine he would have no qualms about having them there and described the security issues as minimal in the post RAMSI period.
The Deputy Commission of Police for the Solomon Islands, Peter Marshall, advises that there is “unquestionably” no problem for children in the Solomon Islands. He suggests that the Australian Travel Advisory Guide was “totally out of kilter with reality” and that from a crime and civil disorder point of view there is nothing of concern for anyone bringing children to Honiara in the foreseeable future.
A superintendent of police from New Zealand confirmed that there were no safety or security issues for expatriate or other children. The crime rate, he said, is extremely low compared to places like Sydney, Brisbane and Auckland.
Ms L, a local magistrate, stated that there was absolutely no problem on a long term basis let alone a short term basis and further that; “Everything is OK under RAMSI”. She said that there was a low crime rate and despite regular political tension since 1999 she did not know of anyone having concerns for children. People are alert by not anxious.
Mr S, a former member of parliament limited his concerns to two days in April 2006 but pointed out that there was no loss of life or serious injury on that occasion. He has never witnessed children in any kind of trouble. Mr S saw RAMSI as the insurance against a repeat of the 2000 coup. He spoke in glowing terms of the family.
Mr S felt it was highly unlikely that the father would ever contemplate not returning the children to their mother. He would never stoop that low and has always shown great respect for others and would not want to tarnish the good name of the family built up over three generations.
These views were generally confirmed in other affidavits including one from the Registrar of the High Court.
Overall I am not convinced by the totality of the evidence that there is any reasonable likelihood that the current situation in the Solomon Islands is so chaotic or explosive that the children could not safely spend up to a month at a time in Honiara. The father is responsible for ensuring that they were adequately protected and there is no reason to think that he would be reckless in this regard.
The non return issue
The question of whether non-return has been established to the probability standard as an unacceptable risk, is a more difficult question to resolve.
Risk based conclusions are predictions or forecasts of what might reasonably happen because of what has or might have happened in the past or other factors. It is not a determination about what a respondent will do based on a conclusion about what he has done in the past. Rather, it is an informed opinion or judgment about future possibilities. The relevant test is not a strictly legal one. Probable or possible previous misconduct can, but may not be, indicative. The same body of evidence may produce two equally rational and reasonable but diametrically opposed conclusions neither of which is exactly right or wholly wrong.
Potential hazards must be given due but not excessive weight. Giving far too much weight to a particular factor will constitute a miscarriage of justice. The risks to be guarded against are unacceptable ones not bare possibilities or conjectural or irrational concerns.
The judicial response has to be proportionate to the magnitude and likelihood of the potential adverse consequences.
A risk may be said to be unacceptable where there is an uneasy feeling that not to act would be a failure to provide the protection a child needed and it is entitled to from a court.[4]
[4] Fogarty, J, ‘Unacceptable Risk – a Return to Basics’, ( 2006) 20 Australian Journal of Family Law 249 at 262.
The more serious the consequences, the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where even though it is likely to occur, the consequences are comparatively minor and the overall benefits significant.
Relevant factors include the post separation history, the state of relationships within the family, parental attitudes, threats, motive, other facts which may seem minor or trivial in isolation but taking together may suffice to establish an unacceptable risk.[5]
[5] Re H (1996) 1 All England Reports 1 at 22
The biggest risk indicators here are the father’s belief in the central significance of Solomon Islands to the children’s future, his future business plans for his son, his heavy emphasis on their cultural and ethnic needs, the effect of ongoing parental conflict, the Solomon Islands legal system in particular light of the fact that it is a non-Hague Convention signatory.
I am informed from the bar table and have no reason not to accept that the father’s investment properties in Australia are all subject to caveat pending resolution of property settlement proceedings. Fighting to retain his share of this sizeable property and ensuring that the wife is not unjustly enriched would ordinarily provide a strong incentive to return. The father’s counsel goes so far as to say that the father would practically never be able to ever return to Australia if he retained the children in contravention of my orders.
I am prepared to proceed on the assumption that the father would probably not be able to enforce a custody or property order obtained in Solomon Islands in Australia, because he would be in contempt and, for the same reason may not be able to participate effectively in property proceedings either. This would mean that the property claims would be decided on an uncontested basis but still within the s 79 framework under the constraint of the just and equitable requirement. None of those disadvantages would matter much however, if he was willing to “purchase” the possession and control of his children by sacrificing his Australian assets or did not need to re-enter Australia for any other reason.
Desperate mothers and fathers are driven to extreme behaviour. High emotions in the aftermath of family breakdown can cloud judgements, distort outlooks and override reason to such a degree that ill-advised and even unlawful actions are sometimes taken that would not be even contemplated in more usual circumstances.
$3.3 million is certainly a lot of money and to most people is worth arguing about. But, I don’t have any reliable sense of what his proportionate share means to the father compared with the benefits of sole possession and control of the children in the Solomons. I’m not confident about which of these he values most at this point in time.
I do not think that the perceived non-return risk is as high as the mother suspects. I have no doubt at all that her beliefs and fears are real but I need to be satisfied that they are also based on reasonable grounds before putting them into the scales and weighing their significance as part of the totality of relevant matters bearing on the risk if she were making overseas travel decisions. It is almost forensically impossible to positively prove a disputed state of mind especially a likely future intention. When the consequences are grave even slight risks based on reasonable suspicion or possibilities as distinct from probabilities may suffice.[6]
[6] See, for example, in a deportation context Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 per Smithers J at 673 (Deane and Evatt JJ contra).
As Kirby J noted in Wu Shan Liang[7] the evaluation of chance cannot be reduced to scientific precision. That is why in the final analysis a decision maker has to return to the question, “What if I am wrong?” to avoid being left with nothing to speculate about on the whole of the evidence because risk factors eliminated on the way through because they seemed unlikely or remote in isolation, but in combination, might be concerning enough to establish an appreciable or unacceptable future risk.
[7] (1996) 185 CLR 259
Thus, I have to ask myself the question – what if I’m wrong and the mother’s instincts are right? What if in the worst case granting the father’s application had the effect of terminating the children’s life with the mother in Australia and met that they grew up in the Solomon Islands with the father?
Is the risk too high to take because the worst case would be inconsistent with the children’s best interests and possibly irreversible?
The difference in the legal systems has to be relevant to resolving this question.
Non-convention states can become “haven states” for parental child abduction.[8]
[8] Zawadski, D., ‘The Role of Courts in Preventing International Child Abduction’, (2005) 13 Cardozo Journal of International and Comparative Law 353 at 359.
It has been held that child recovery disputes in a common law based jurisdiction that is a non-signatory to the Hague Convention, as the Solomon Islands is, should be dealt with in the country in which the child was habitually resident before abduction.[9]
[9] AB v AC (2004) SGDC 6 at [19].
However, there is no guarantee that the same stance will always be taken.
The content and practice of foreign law is a question of fact and to be proved by evidence unless conceded. In the normal course, such evidence would require proof of expertise.[10] Indeed, in the absence of proof to the contrary, the general rule is that a Court should assume the foreign law to be the same as Australian law and the onus to establish otherwise lies on the party asserting the content of the foreign law.[11]
[10] Toric and Toric (1981) FLC 91-046.
[11] See S v D [2005] NA36 of 2005 (Unreported, Warnick J 13 October 2005). See also M & DOCS (1998) Fam CA 142.
However, I would not take such a technical approach in a risk assessment involving the welfare of children. What I do know is that there is no evidence that the courts in the Solomon Islands would be more likely than not to enforce the Australian orders against the father despite being a non-convention country. I do not know (because of lack of evidence at trial) whether the custody or relocation laws in the Solomon Islands in significant respects places the mother in a less favourable position than the father.
Nor do I know what the chances are of obtaining the return of the child with or without the help of the Solomon Island authorities. I do not know what assistance the mother would be likely to receive from the police or diplomatic channels. State assistance can really only be counted on between signatories to the convention. Even if the children could be found, the mother may be left with no practical alternative except re-abduction which, of course, is illegal.
Since the welfare of the child is paramount it could theoretically override considerations of international comity or the forum non conveniens doctrine.
Recently in Re J (a child) (return to foreign jurisdiction: convention rights)[12] the House of Lords re-iterated the view that a common law non-Hague signatory would, unless local legislation such as those giving effect to the Hague Convention otherwise provided, is bound to treat the welfare of the child as being the paramount consideration whatever orders may have been made by the court in another country. This decision makes it clear that the Hague Convention arrangements do not extend to countries which are not parties to it.
[12] (2005) UKHL 40.
A non-convention country with a common law heritage may opt for summary return but it is not an automatic reaction to every wrongful removal. It is properly ordered when, and only when, child welfare considerations require it. The welfare of the children could conceivably be held to displace public policies discouraging wrongful removals.
The outcome of court based recovery in the Solomon Islands is likely to be heavily influenced by value systems and social norms which may or may not be the same or substantially similar to those in this country. Not everyone shares our view on parenting or the significance of cultural traditions. One culture is not inevitably to be preferred to another. Some countries regard a mother’s conduct within marriage as relevant to her fitness or eligibility to care for young children.
The degree of connection with the child with each country including the length of time he or she has spent there and matters of cultural importance would of course be relevant factors.
While a domestic Solomon Islands court may be willing to return the children to Australia, if the father failed to do so, it might just as equally allow them to stay either because of their historical and cultural connections and differing concepts of child welfare.
Even if the father was willing to file a “voluntary”, unequivocal and ostensibly irrevocable submission to Australia’s jurisdiction in the Solomon Islands, he may later turn around and (successfully) challenge its validity on duress or oppression grounds.
I find that it would be in the children’s best interests to experience their father’s home country for block but temporary periods. Culture and cultural identity and their enjoyment are important best interests considerations. However, this factor need to be weighed against the children’s right and need for the parents to continue equal shared time and responsibility or, in s 60CC terms, the need for a meaningful relationship with both parents, the need for continuity and stability with their schooling and lifestyle in connection with their Australian as well as their Solomon Island culture, the close relationship they have with the mother and the stability of the status quo. In a difficult case a child’s cultural and other needs may have to defer the balance of these factors.
The best interests pendulum would swing dramatically in the opposite direction if the children were to be kept permanently in another country, away from their mother with whom they currently spend half their time.[13]
[13] Loh and Kalliou ( 2007) Fam CA 444.
Despite the father’s substantial property investments in Australia and his obvious interests in protecting them I am reasonably satisfied of sufficient risk to refuse permission to leave at this stage. I cannot ignore the dire (and expensive) consequences if that risk is realised. Together, the level of risk and potential consequences persuade me that it is contrary to the children’s best interests for them to travel to the Solomon Islands without appropriate guarantees of their return.
While I accept that it is all he can raise at the moment, the security offered by the father is simply inadequate as a reasonable incentive to return or to provide the mother with funds reasonably required to pursue a return through the Solomon Island system.
I think the application is premature. It is made far too early after such an acrimonious family breakdown. There is mutual hostility and mistrust and unresolved conflict between the parents. Neither is as child focused as they need to be. That, no doubt, takes time to acquire. In a fluid situation like this an overseas travel application would have more realistic prospects of success if it related to a specific proposal on a trip by trip rather than a “once and for all” basis. The Court, however, is more likely to err on the side of safety. A risk that can be worth taking on the faith of an assurance in respect of one trip may not be worth taking even with substantial sureties in another. Timing and the prevailing conditions and circumstances can be decisive.
These parties have to quickly acquire the ability to make their own decisions about future overseas travel. That is their obligation as equal shared responsible parents and joint long term child related decision makers. Attitudes change over time
The father’s application is dismissed.
He can reapply when he has a specific considered and fully itinerated proposal to make.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody
Associate:
Date: 14th September 2007