Secretary Attorney-General's Department v S

[1999] FamCA 1528

[1999] FamCA 1528

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT HOBART

NO. HB921 OF 1995

IN THE MATTER OF:

SECRETARY
ATTORNEY-GENERAL’S DEPARTMENT    (Applicant)

and

S    (Respondent)

REASONS FOR JUDGMENT

DELIVERED BY THE HONOURABLE JUSTICE HANNON

ON THE 8 DAY OF NOVEMBER 1999

HEARD:                    1 NOVEMBER 1999

JUDGMENT:           1 NOVEMBER 1999

APPEARANCES:

Mr. S. Allston instructed by The Secretary, Attorney-General’s Department appeared on behalf of the applicant.

There was no appearance by or on behalf of the respondent. 

This is an application under regulation 17(1)(b) of the Family Law (Child Abduction Convention) Regulations 1986 for a declaration that the retention by the respondent mother in the United States of America in or about the commencement of 1998 of the children, Y born in 1991 and now aged 8 and X born in 1986 and now aged 13, was wrongful within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction. The matter comes before the court under regulation 17(2) pursuant to a request by Judge Timothy Simmons of the District Court, County of D in State B, made on the 3 September 1999, pursuant to Article 15 of the Convention.

The father, Mr C, who resides in Tasmania, and the respondent mother were married in 1984.  The marriage was dissolved by a decree which became absolute in 1995.  The parties entered into a Child Agreement dated the 20 November 1995 in relation to the children and that agreement was registered in the Hobart Registry of the Family Court of Australia on the 6 February 1996.  The relevant provisions of that agreement are paragraphs 2,3,4 and 9.

2.Whilst the children and the Father reside in the State of Tasmania the Father may have access to the children during each weekend from 7.00 pm on Friday evening until the following Sunday at 7.00 pm.

3.During any period that the children and the Father reside in different States of Australia the Father may each and every year have access to the children during each school vacation as fixed for schools in the State in which the children reside and such access may at his election be exercised by the Father in the State in which the children reside or in the State in which he resides or any other State in Australia as follows:-

(a)For the two mid-year school vacations commencing on the day after school ‘breaks-up’ for that vacation and terminating on the forth (sic) last day of that vacation; and

(b)for at least one-half of the Easter school vacation, and

(c)for at least one-half of the Christmas-New Year school vacation.

4.The Father may exercise access to the children at other times or for other periods additional to or in substitution for a time period referred to in paragraphs 2 and 3 above-written as may be agreed in writing between the parties.

9.Neither party shall without the prior written consent of the other take the children out of the Commonwealth of Australia or out of the State of Tasmania and the party intending to remove the children from Australia and/or the said State shall at least one week prior to the planned date of departure provide to the other in writing all details including dates of departure and return, contact addresses and telephone numbers during the intended absence from the State and that party shall keep the other informed of all subsequent addresses at which the children may be residing from time to time and of all telephone numbers at which the children may be contacted.

Subsequent to that Child Agreement the mother informed the father that she wished to go to State B and remarry and, according to his affidavit sworn on the 18 October for the purpose of the present application, she indicated that she wanted the children to go to the United States to visit her.  As a consequence and at the instigation of the father, a further Child Agreement was entered into between the parties on the 4 June 1996 and registered in the Hobart Registry of the Court on the same day.  This Agreement is annexure “B” to the father’s affidavit.  According to the father, the purpose of the agreement was to control what would happen to the children in connection with the visit to their mother.

The relevant provisions of that agreement are paragraphs 1,2,3 and 4. 

1.Commencing on 12^th June 1996 and for the following 5 month period the Father, who shall be residing in the State of Tasmania, shall have continuous access to the children.

2.(a)      In mid November 1996 the Father shall travel from Tasmania to the United States of America with the children and he shall take them to the Mother at her residential address in [City E], [State B], United States of America.

(b)The cost of air-travel between Australia and the United States of America referred to in sub-paragraph 2(a) above shall be as follows:-

(i)the Father shall pay the cost of his passport, visas, return airfares and any associated expenses, and

(ii)the Mother shall pay the cost of the children’s passports, visas, airfares and any other associated expenses necessary for the children to fly from Australia to the United States of America.

3.From mid-November 1996 until mid-April 1997 the Mother, who shall be residing in [City E], U.S.A., shall there have continuous access to the children.

4.(a)      In mid-April 1997 the parties intend to assess their respective situations and to make a decision as to whether the children must or will return to Australia to reside with their Father or whether they will remain in the United States of America and continue to reside with their Mother.

(b)      If the children are to return to Australia as referred to in sub-paragraph 4(a) herein then the parties shall equally bear the cost of the children’s travel from the United States of America to Australia. 

At the date of the Agreement, section 67ZD provided that “….a Child Agreement registered under section 66ZC, in so far as it makes provision in relation to child welfare matters, has effect as if it were an order made under this Part by the court in which the agreement is registered.”

Although the Act was amended in 1996 to replace Child Agreements with Parenting Plans, section 4(2) of Schedule 2 of the Transitional Provisions of the Amending Act provided that, “If immediately before the Part VII commencement, the registration of the Child Agreement under section 66ZC of the old Act was in force, the registration continues to have effect after that commencement ….”

It is clear from the Child Agreement of the 4 June that the parties intended that it should operate to provide for their rights in relation to the children until mid-April 1997, at which time the parties intended to assess their respective situations and to make a decision as to whether the children must or would return to Australia to reside with the father or remain in the United States of America and continue to reside with the mother.

The terms of the agreement were varied by arrangement between the parties at the request of X as a result of which the children’s visit was delayed.  According to the father, the children expressed concern about going to State B and the father sought advice from the Legal Aid Commission of Tasmania and was advised that he obtain consent orders from a court to govern the circumstances of the children’s intended visit to State B.  Orders were negotiated with the mother and were sent to her for signature.  The orders provided (inter alia) that the children reside with the mother from the 16 May 1997 until the 16 September 1997 and that at the conclusion of the period of residency, the children be promptly returned by the mother to the father.  Paragraph 7 of the proposed orders provided that the children reside with the father at all other times, however if the mother were to return to Australia, then the children shall reside jointly with the father and the mother. 
These proposed orders make it clear that apart from visiting the mother in State B, it was the intention of the parties that they reside in Australia.

According to the father, he spoke to the mother by telephone and she said that she had signed the orders and would return them by post but would fax a copy of the signature page.  That page arrived and upon its receipt the father allowed the children to go to State B in the company of the mother’s brother, but the substantive orders were not received and therefore have never been entered in the records of the court.

After the arrival of the children in State B the father agreed to their staying until after Christmas 1997 and after that time he had conversations with the mother during which she said that she was not going to let the children come back to Australia.  As a consequence of the mother’s refusal to return the children the father initiated the present proceedings by an application under the Convention, dated the 15 April 1998.

The scheme of the Convention, which has been enacted into Australian law in the Regulations was succinctly stated by Kay J in State Central Authority v. Ayob (1997) FLC 92-746 in the following terms:-

“….that when a child has been determined to be either wrongfully removed from a Convention country to another Convention country or wrongfully retained in a Convention country when it ought to have be (sic) returned to another Convention country, the judicial and administrative authorities of the Convention country in which the child is located are obliged to order the prompt return of the child back to the country from whence it has been wrongfully removed or wrongfully retained unless any of the criteria and exceptions set out in the Convention and the Regulations are met.  Even then there may exist a discretion to order the return of the child.”  (page 84,069)

In De L. v Director-General, NSW Department of Community Services (1997) 187 CLR 640, Kirby J, in referring to the intention of the Convention, said:-

“What the Convention, reflected by the Regulations, has done is to recognise that it is the best interests of children as a class not to be subjected to the turmoil and emotional divisiveness of international abduction.  Wherever this occurs the child involved is ordinarily to be returned to the country in which the child was habitually resident before the abduction.  It is in that jurisdiction that contests about custody and access (or their equivalent) are to be litigated.”  (page 684)

The present application is not to determine whether an order should be made requesting that the children be returned to Australia.  This court’s function is to determine whether their retention in the United States of America is wrongful within the meaning of Article 3 of the Convention.  Such a declaration, if made, is not binding on the State B court, but is designed to assist it. (see Dellabarca v. Christie [1999] NZ FLR 97 at page 99)

The issue is not one of wrongful removal, as the children were taken from Australia with the permission of the father.  The issue for determination is whether there has been a wrongful retention by the mother within the meaning of Article 3 of the Convention which provides:-

“The removal or the retention of a child is to be considered wrongful where –

(a)it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

“Habitual residence” is not defined in the Regulations or in the Convention and is a question of fact in each case.  In Cooper and Casey 18 Fam LR 433 at 435 the Full Court cited with approval the following passages from Friedrich v. Friedrich 983 F 2d 1396 at 1,401:

“We agree that habitual residence must not be confused with domicile.  To determine habitual residence the court must focus on the child not the parents and examine past experience not future intentions.

…

A person can have only one habitual residence.  On its face habitual residence pertains to customary residence prior to the removal.  The court must look back in time not forward.”

If the reference in that passage to “removal” were to be deleted and read as “retention”, it has application to the present case.  If the time of the retention of the children by the mother is taken to be at the latest when, according to the father, she indicated that she was not returning the children to Australia, their habitual or customary place of residence was Australia, and more particularly Tasmania.  They were born in Australia and lived in this country until they left to stay with the mother in 1997.  The terms of the Child Agreement of the 4 June 1996 and of the proposed consent orders did not indicate an intention that the place of habitual residence be changed.  In fact the proposed orders prima facie were drawn on the basis that the residence of the children would remain in Australia.  Neither parent can change the habitual residence of children without the express or tacit consent of the other parent or an order of the court.  (Re: B (Minors Abduction) (No 2) (1993) 1 FLR 993). In the present case the father has given neither a tacit nor express consent. I find that immediately before the children were retained by the mother, they were habitually resident in Australia.

The second matter to be considered in determining whether the retention of the children in the United States of America is wrongful is whether it is in breach of the “rights of custody” attributed to the father under the law of the State in which the children were habitually resident immediately before the retention. In the present case the relevant State is Australia. This aspect of Article 3 of the Convention is reflected in regulation 4. The father has a right of custody under section 111B(4)(a) of the Family Law Act which provides:-

“For the purposes of the Convention:-

(a)each of the parents of a child should, subject to any order of a court for the time being in force, be regarded as having custody of the child;”

There is no order in force which would displace the presumption created by that paragraph.  Further, section 60B(2)(b) provides that:

“Children have a right of contact on a regular basis, with both their parents ….”

Not only did the father have a right of custody under the law of Australia, within the meaning of Article 3, at the time the mother decided to retain the children, he would have exercised that right had it not been for their retention in the United States of America, as he had exercised the right prior to the children travelling to that country for what was only intended to be a temporary stay. 

I declare that the children have been wrongfully retained in the United States of America within the meaning of Article 3 of the Convention.