Secretary, Attorney-General's Department v TS

[2000] FamCA 1692

[2000] FamCA 1692

FAMILY LAW ACT 1975
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS

IN THE FAMILY COURT
OF AUSTRALIA
AT HOBART REGISTRY  No HB 1356 of 2000

BETWEEN

SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT as the Commonwealth Central authority under the Family Law (Child Abduction Convention) Regulations 1986      (Applicant)

And

TS

(Respondent)

EDITED REASONS FOR JUDGMENT

Before  Nicholson CJ
Dates of Hearing  26 September 2000 and
  30 November 2000
Date of Order  18 December 2000
Date of Delivery of Judgment             21 December 2000

Appearances

Mr Allston of Counsel instructed by Office of the Solicitor General, Level 8/15 Murray Street, Hobart Tasmania for the Applicant

Mr Steven Chopping of Counsel instructed by Steven Chopping LLB 131 Macquarie Street, Hobart Tasmania for the Respondent

CHILD ABDUCTION - HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION - CHILD BROUGHT FROM OVERSEAS BY MOTHER - BROUGHT FROM NEW ZEALAND - DECLARATION BY FAMILY COURT OF NEW ZEALAND THAT THE CHILD'S REMOVAL WAS WRONGFUL WITHIN THE MEANING OF ARTICLE 3 - WHETHER REMOVAL AND/OR RETENTION WAS IN BREACH OF "RIGHTS OF CUSTODY" - WHETHER THE FAMILY COURT OF NEW ZEALAND AND/OR THE FATHER HAD "RIGHTS OF CUSTODY" WHETHER COURT REQUIRED BY REG 16(1)(a) TO ORDER RETURN - WHETHER TIME RAN FROM THE DATE OF THE DECLARATION - WHETHER COURT REQUIRED TO RETURN BY REG 16(1)b) - WHETHER INFANT CHILD CAN BE "SETTLED" IN NEW ENVIRONMENT - WHETHER IF CHILD IS SETTLED THERE REMAINS A DISCRETION TO RETURN - ASSUMING WITHOUT DECIDING THAT THE DISCRETION EXISTS ORDER FOR RETURN NOT MADE.
INTRODUCTION

1. These are proceedings brought by the Secretary of the Attorney-General’s Department of the Commonwealth of Australia as the Central Authority under the Family Law (Child Abduction Convention) Regulations 1986, being proceedings brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).

1. The application is made under Reg 14(1) of the Family Law (Child Abduction Convention) Regulations 1986 (the Regulations) for the return of a child [BAS] (“the child”) to what is asserted to be his country of habitual residence being New Zealand, upon the basis that the child has been either wrongfully removed to Australia and or wrongfully retained in Australia.

1. The Respondent to the application is [Ms TS], who is the mother of the child who was born [in October] 1998.  The mother has two other children, [CAS] born [in] March 1997 and [TMS], born [in] April 1990.  These children have different fathers to the child [BAS], but all three currently live with the mother and her de facto partner [Mr N] (...) near Hobart in southern Tasmania.

1. The father of the child is [Mr S], who at all material times has lived in New Zealand.  He and the mother never lived together in a de facto relationship.  Under New Zealand law this means that in the absence of a court order, the father has no parental rights.  He did however, seek access to the child from the time that the mother returned home with him from hospital following his birth and she says that following initial disputes, he exercised access at her home once per week.  The mother says that she became concerned about the attitude of Mr [S] and she feared that he was harassing her and this led to a decision on her part to move to Australia. 

RELEVANT HISTORY

1. On the 16^th December 1998 the father filed an application with the Family Court of New Zealand for orders appointing him as an additional guardian of the child and granting him access to the child.  This application was supported by an affidavit sworn by him on the 16^th December 1998.

1. On or about the 22^nd December 1998 the mother filed an application with the Family Court of New Zealand for an order granting her custody of the child which was supported by an affidavit sworn on her on the 10^th December 1998. 

1. It appears that the parties instituted these proceedings independently of each other and without knowledge of the other’s application.

1. On the 12^th January 1999, the father filed a Notice of Defence to the mother’s application for custody.

1. The father says that on the 15^th January 1999 friends informed him that the mother intended to remove the child from New Zealand.  He ascertained that a passport was issued in respect of the child at Wellington, New Zealand on the 8^th January 1999.

1. On the 15^th January 1999 the father filed an ex-parte application and supporting affidavit seeking an order that the child not be removed from New Zealand. 

1. As no Family Court judge was available to hear that application, the Registrar declined to issue a warrant pursuant to s20(1)(a) of the Guardianship Act 1968 and instead ordered pursuant to s20(1)(b) of the Guardianship Act 1968 that:

   'Pending direction of a judge on 18^th January 1999, any tickets and travel documents in respect of the child be surrendered to the District Court Hawera forthwith."

1. The evidence is that the order of the Registrar was served on the mother on the 15^th January 1999.

1. On the following day she contacted the father and allowed him to spend a few hours with the child but did not discuss any travel plans with him.

1. It appears that the mother and child travelled to Auckland on the 17^th January 1999 and left Auckland for Australia on the 18^th January 1999. She was obviously aware of the fact that the father’s application to restrain her from taking the child from New Zealand was to be heard on that day.

1. The application to prevent the removal of the child from New Zealand was duly heard by a judge of the Family Court of New Zealand on the 18^th January 1999.  The mother did not appear and an order in those terms was made, but after the mother and child had already left New Zealand.

1. On the 26^th January 1999 the Family Court of New Zealand directed that the applicant’s rights under the Convention could only be determined by the Family Court of Australia.  The father then contacted the New Zealand Central Authority and made an application dated the 8^th February 1999 in accordance with the Convention for the return of the child to New Zealand.

1. On the 12^th July 1999 the father applied in the New Zealand proceedings to the Family Court of New Zealand for an order for substituted service on the mother.  An order was made for substituted service on the same day and the time for filing a defence was fixed at 35 days.  It appears that the proceedings were subsequently served upon the mother on the 19^th July 1999.

1. An order appointing the father as an additional guardian of [BAS] was made by the Family Court of New Zealand on the 29^th September 1999.  The hearing proceeded by way of formal proof and there was no appearance by or for the mother.  An order was then made that the applicant father have reasonable access to the child.

1. On the 25^th October 1999 the Australian Central Authority wrote to the New Zealand Department of Courts seeking clarification of the following issues;

   (a)the effect of the order preventing removal of child on the applicant’s rights of custody and whether the timing of the removal and the making of the order had any effect on those rights;

   (b)the effect on the father’s rights of custody of the guardianship orders sought before, but obtained after, the removal of the child.

1. The matter was referred to the Family Court of New Zealand pursuant to the Convention.

1. In the course of his decision, Judge Walsh, who heard the matter, relied upon the decision of the New Zealand Court of Appeal in Re Dellabarca v Christie [1990] NZLR 97 to which I shall refer subsequently. Judge Walsh indicated that it was clear from the principle set out in that case that the applicant father did not have to establish that he had the right to determine [BAS's] right of residence. He took the view that the evidence established that the parties had negotiated an informal oral agreement enabling the father to see [BAS] for two hours per week. Judge Walsh considered that that agreement was an agreement in terms of s18 of the New Zealand Guardianship Act 1968, which provides as follows:

"Effective custody agreements

An agreement between the father and mother of a child with respect of a custody or upbringing of or access to the child shall be valid, whether or not either of the parties is a minor, but shall not be enforced if the Court is of the opinion that it is not for the welfare of the child to give effect to it."

1. His Honour also considered that if he was wrong in that view then in the alternative the Family Court of New Zealand had rights of custody and in this regard he referred to New Zealand decisions that adopted the views expressed by the English Court of Appeal in Re C v C (Minor: Abduction: Rights of custody Abroad) [1989] 1WLR 654; 2 All ER 465; 1FLR 403 [in this judgment referred to as C v C].

1. His Honour accordingly made a declaration on the 7^th February 2000 that the child’s removal from New Zealand was wrongful within the meaning of Article 3 of the Convention.  Unfortunately by this time, more than twelve months had expired since the child was removed from New Zealand, which is a matter of critical importance as hereafter appears.

THE AUSTRALIAN PROCEEDINGS

1. The present application was filed by the responsible Australian Central Authority with the Family Court of Australia on the 13^th June 2000, almost 18 months after the child was removed from New Zealand.  The reason for the further delay in making the application was not explained by the applicant.

1. The matter originally came on for hearing before me on the 15^th September 2000. On that day I heard evidence and submissions as hereafter appear and reserved my decision.

1. Thereafter, on the 22^nd September 2000 the Court received a written communication about the matter from a Mrs [I]. Mrs [I] is a former schoolteacher who conducts a family day care business from her home (...) and who has cared for the child [BAS] over an 18 month period. In view of the contents of the statement, I directed that copies be referred to the Central Authority and brought the parties before me on the 28^th September 2000. After hearing the parties I gave the mother leave to reopen her case and file further affidavits and adjourned the further hearing of the matter to Hobart on the 29^th November 2000, that being the first date upon which I could resume the hearing.

THE EVIDENCE

1. The mother in an affidavit sworn in the proceedings confirmed that she did travel to Australia on 18^th January 1999, living first with friends and then at a women’s shelter.  She said that she then moved to her current residence (...) which is three bedroom rented accommodation which she shares with her de facto partner Mr [N] and the three children. 

1. She said that in the house, [BAS] has a room of his own and her two daughters share the third bedroom.  She deposed to the fact that the eldest child attends primary school and that [BAS] and his sister [CAS] attend day care.  She said that [BAS] is happy and healthy and enjoys an extremely good relationship with her partner.  She indicated her desire to remain permanently in Australia and continue in the settled environment in which she now lives.

1. She deposed to being pregnant to her de facto partner and said that the date of the birth of the child was expected to be in the first week of February 2001.  She and he were at the time of swearing the affidavit registered jointly for the receipt of Social Security Benefits.

1. Counsel for the Central Authority did not seek to cross-examine the mother.

1. The applicant Central Authority called evidence from [Ms G], a psychologist as to the issue of whether a child of approximately 22 months could be said to have settled into his new environment and whether a child of that age could make independent connections to the community.

1. Her view was that a child of 22 months usually makes his most significant attachment to the principal figure in his life, that is the person who is his primary caregiver and who provides nurturance, predictability, protection, familiarity and comfort.  She said that a child can make attachments to more than one person, but these are usually secondary attachments, which can act as substitutes to the primary attachment figure.  She said that a child of 22 months is not likely to make an independent connection to people or places as the child’s principal attachment is to his primary caregiver or at most, one or two people when the child is this young and the child’s psychological well being is dependent on the presence of that primary caregiver rather than its physical environment.  She expressed the view that at this age the child does not have the developmental capacity to form a connection with his environment independent of his primary caregiver.

1. She said that within the first twelve months the child’s attachment is initially based on physical proximity to the primary caregiver.  As children get older they are able to use their cognitive abilities to form significant attachments to individuals other than their primary caregiver and by age four they enjoy the company of other children.  She said that however even then, they engage primarily in parallel play which involves proximity in mirroring rather than active interaction and that generally it is not until the age of five or six that they engage in co-operative play and actively seek interaction with other children and thereby may form an independent connection to another child.

1. Ms [G] was cross-examined by Mr Chopping but she did not deviate significantly from the evidence contained in her affidavit.  She did however concede that in considering whether a child has an attachment to the environment the mother obviously forms part of that environment.

1. At the hearing on the 29^th November, an affidavit by Mr [N] and an affidavit by Mrs [I] were relied upon by the mother. A further affidavit by the father, Mr [S] had also been filed but Counsel for the Central Authority did not seek to rely upon it.

1. Both Mr [N] and Mrs [I] were cross- examined by Mr Allston for the Central Authority. The substance of Mr [N's] evidence was directed to the close bond that has been formed between the three children and himself and particularly with [BAS]. He has clearly acted as a father figure to [BAS], who not surprisingly regards him as his father and calls him “Daddy”, as do the other children.

1. He felt that [BAS] would be devastated to be separated from himself and his two sisters if he was to return to New Zealand with his mother. He indicated that he would do his best to come to New Zealand and re-establish the family if an order was made for [the return of BAS] but thought that he might encounter difficulty in doing so having regard to his financial position. In this regard it should be noted that he was until recently in receipt of social security benefits and has now obtained a part time position with the Salvation Army.

1. Mrs [I] said that she was registered as a Family Day Carer with the Hobart Family Day Care Scheme and has been working as a registered Family Day Carer for 16 years. She holds an extended registration which allows her to provide home based childcare in her own home for up to six children under 7 years of age and a maximum of 8 children up to the age of 12 years.

1. She holds a Bachelor of Arts (Hons) and a Diploma of Education and had extensive experience as a teacher prior to commencing work as a Family Day Carer in 1984. She said that she had been working closely with children for almost all of her working life and with very young children for all of the time that she has been a day carer. She has also been involved in the preparation of curricula and the training of people seeking qualification as carers. She has also had extensive experience in developing childcare policies in conjunction with Government and has played an active part in professional associations in the area of childcare. Her childcare responsibilities not infrequently involve liaison with other child care professionals.

1. She said that she has developed a particular interest in children’s social and emotional development and has delivered interactive workshops on child behaviour and the understanding of children’s social and emotional needs at national and other Day Care conferences.

1. She said that currently she provides family day care for up to six young children at a time with a total of 11 children between the age of 1 and 5 years attending at different times during the week.

1. She said that [BAS] and [CAS] had been attending day care at her home since February 1999 when [BAS] was only four months old. She said that both children very much enjoy and benefit from their experience in day care, attending usually twice per week between 9am and 2pm. On occasions the children attend three times per week and sometimes only once. She said that they had firm friendships with the other children and that [BAS] was particularly close to [CAS].

1. She said that from the time that the family first moved into their present accommodation with Mr [N] as part of the family unit she had observed a positive difference in the emotional well being of both [BAS] and [CAS] and she noted their warm attachment to him, as well as to their mother.

1. She said that as [BAS] has grown older he recognises and responds joyfully to all the familiar landmarks in his community and to all of the people who have become part of the social fabric of his life, such as the other children in family day care and their parents, together with her husband and children. She said that it was the strength of the family bonds with the mother and Mr [N] that has given him the self-confidence to enjoy wider social contacts within the family home and in the child care situation.

1. She expressed the strong view that any attempt to separate [BAS] from his family or from Mr [N] and [CAS] would be devastating for him emotionally and cause psychological harm, which in turn would severely inhibit all aspects of normal child development.

THE ISSUES

1. The applicant first submitted that;

   (a)the removal of the child from New Zealand on the 18^th January 1999 was in breach of the “rights of custody” (within the meaning of the Regulations) of the Family Court of New Zealand and / or the applicant under the Convention, namely the child’s father, Mr [S];

   (b)the subsequent retention of the child in Australia was in breach of the rights of custody of the father under the Convention

1. Secondly or alternatively it submitted that the continued retention of the child in Australia is in breach of the rights of the father under the order made by the Family Court of New Zealand on the 29^th September 1999 whereby the father was appointed as an additional guardian of the child.

1. The applicant further submitted that if it were accepted that rights of custody within the terms of the Regulations existed in the Family Court of New Zealand or the father;

   (a)the Court was required by Reg 16(1)(a) of the Regulations to order the return of the child by reason of the fact that the day on which this application was filed is less than 12months after the date on which the child was first wrongfully retained in Australia, that being the 29^th September 1999, which was the date on which the Family Court of New Zealand made an order appointing the father as an additional guardian of the child;

   (b)alternatively, the Court was required by Reg 16(1)(b) of the Regulations to order the return of the child to New Zealand for

   (i)the child is too young to have become settled in his or her new environment within the terms of that Regulation and/or

   (ii)the respondent did not put sufficient evidence before the Court to discharge the burden which lay upon her to positively satisfy the Court that settlement had occurred.

1. Alternatively the applicant submitted that the Court should in its discretion, order the return of the child to New Zealand, so that the courts of that country could determine the currently pertinent rights of the mother and father in respect of the child. 

1. Initially, the mother had sought to raise the ‘grave risk’ exception under Reg 16(3)(b) but Mr Chopping, who appeared for the mother before me, specifically abandoned this ground.

RIGHTS OF CUSTODY

1. I turn first to the issue of rights of custody.  Mr Chopping, while not specifically conceding this point, did not address argument to it and appeared to accept that rights of custody lay either with the Family Court of New Zealand or with the father at the time that the child was removed from New Zealand.

1. Mr Allston, who appeared for the applicant, while maintaining that there were rights of custody sufficient to found jurisdiction, also very properly made it clear that the issue was not beyond doubt.

1. He was not inclined to rely upon Judge Walsh’s finding that the father had rights of custody stemming from the informal access agreement between the parties, although he indicated that if all else failed he would do so.  With respect to His Honour, I have some difficulty in accepting his view in relation to this issue but in light of my decision nothing turns upon this point.

1. Similarly he expressed doubts about whether a court as such could have rights of custody as found by Judge Walsh.  He pointed out that this issue had never been decided in Australia although it had been in New Zealand, the United Kingdom and Canada in favour of the proposition that a court did have such rights. 

1. He invited me to find however that the father had acquired rights of custody by reason of his pending applications to the Family Court of New Zealand.

1. Article 3 of the Convention 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 by for the removal or retention."

1. 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.

1. Article 4 of the Convention provides:

   "The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights.  The Convention shall cease to apply when the child obtains the age of sixteen years.  "

1. Article 5 provides:

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 the child for a limited period of time to a place other than the child’s habitual residence."

1. In her commentary on Article 5 of the Convention, Dr Perez-Vera remarks upon the fact that there are three sources under Article 3 under which rights of custody may arise. These are firstly by operation of law, which she stresses to be particularly important because there are many cases, like this one, where no actual order has been made at the time of the removal of the child.  She then points out that the second source is a judicial or administrative decision and thirdly, she says that rights may arise by reason of an agreement having legal effect under the law of the State.  She points out that the interpretation of this is dependent upon the law of the State in question.

1. The English courts have for many years taken the view that in appropriate circumstances, rights of custody lie with the court.  The basis of this view lies in the decision of the Court of Appeal in C v C. In particular Lord Donaldson MR said at [1989] 2 All ER 465 at 473:

"What matters is whether those rights fall within the Convention definition of rights of custody.  Equally it matters not in the least whether those rights would be regarded as rights of custody under English law, if they fall within the definition.

“Custody” as a matter of non technical English means safekeeping, protection, charge, care, guardianship, (I take that from the shorter Oxford English dictionary); but rights of custody as defined in the Convention includes a much more precise meaning which will, apprehend, usually the 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 care taking 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, eg “within the Commonwealth of Australia”."

1. The principles expressed in this decision have been consistently followed in English courts and have subsequently been followed by the Courts of Canada and New Zealand.  They were recently the subject of extensive discussion in the Court of Appeal in the case of Re: H (Abduction : Rights of custody) [2000] 1 FLR 201 particularly in the judgment of Thorpe LJ.

1. His Lordship said at 206:

“However, before turning to the Irish law and proceedings it is convenient to trace the development of case law in this jurisdiction since the decision in Re C [C v C]. In B v B (Child Abduction: Custody Rights) [1993] Fam 32, sub nom B v B (Abduction) [1993] 1 FLR 238 this court, applying Re C, held that Art 5 custody rights were vested in the Court of Ontario. In Re B(Minor) (Abduction) [1994] 2 FLR 249 and Re F (A Minor) (Child Abduction : Rights of Custody Abroad) [1995] Fam 224, sub nom Re F (Child Abduction : Risk if Returned) [1995] 2 FLR 31 this court emphasised that the construction of the phrase “rights of custody” in art 3 and 5 should be purposive and wide. To take a single sentence from the judgment of Waite LJ in the former case at 260:

“In most cases that will involve giving the term the widest sense possible.”

1. Thorpe LJ went on to discuss the practical difficulties of determining where the line should be drawn in individual cases.  He referred to the decision of Wall J in Re B which involved a case bearing some similarities to the present one.  In that case, the mother left England after the father had issued an application for parental responsibility but before it was heard.  Wall J took the view that the father had no rights that could have been breached at the time that she departed and any right of custody that the father might subsequently obtain could not make the abduction wrongful.

1. The Court of Appeal refused leave to appeal but Thorpe LJ commented that too much should not be read into this fact.

1. Thorpe LJ then referred to two decisions of Hale J being in Re: W (Abduction : Father’s rights) [1999] Fam 1, sub nom Re : W; Re B (Child Abduction : Unmarried father) [1998] 2 FLR 146.

1. In Re W, the father was on the point of acquiring parental responsibility of the date of the removal.  Her Ladyship’s comments, which are reproduced in Thorpe LJ’s judgment at 208 are as follows:

“ I am greatly attracted to the proposition that, where the court is actively seized of proceedings to determine rights of custody, removal of the child from the jurisdiction without leave of the court while those proceedings remain pending is a breach of the rights of custody attributable to the court … Of course hard cases make bad law.  But the behaviour of the mother in the W case was calculated to frustrate the process of the court … There is something particularly repugnant about a litigant seeking to frustrate the processes of the law in this way.  This emboldens me to conclude that the removal of the W child was wrongful within the meaning of the Contravention because it was in breach of the rights of custody attributable to the court. …"

She continued:

"Relevant proceedings would obviously include proceedings for residence, parental responsibility or to prohibit removal of the child as these are “rights of custody” under the Contravention.  It may be that they should extend to any proceedings for an order relating to the child, but that does not arise in the present case.  Similarly, proceedings will obviously be pending for this purpose if interim orders have been made and directions given for a final hearing.  In the light of Re B (Abduction: Rights of Custody) [1997] 2 FLR 594, however, it is doubtful whether the mere issue of the proceedings is sufficient.  They should probably have been served and it is possible that some action by the court is needed to invest it with rights of custody.  This could be making interim orders or it could be giving directions for the future conduct of the case.”

1. Thorpe LJ also discussed two further decisions of Hale J, the first of these being Re J (Abduction : Declaration of wrongful removal) [1999] 2 FLR 653. In that case an ex parte application was made by the husband for a parental responsibility order and an order prohibiting the mother from leaving the jurisdiction. It was adjourned to be heard on notice, but on the same day the mother left England. Hale J thought that there was sufficient to invest the Court with rights of custody in the sense that it was seized of the issue as to whether the child should be taken abroad.

1. Again in Re : C (Abduction : Wrongful Removal) [1999] 2 FLR 859, Hale J dealt with a case where the father had applied for contact and parental responsibility. Negotiations then ensued and the father did not immediately pursue the application. The mother then left the country with the child. Hale J took the view that the father’s and/or the Court’s rights of custody had been breached.

1. Thorpe LJ agreed with the general approach taken by Hale J but obviously had difficulty in formulating a principle to determine the question of what it is that vests rights of custody in the father or court, or the point where any proceeding for custody could be said to vest in a court.

1. He went on to say at pages 211-212:

   “Obviously there would be satisfaction as well as benefit in achieving a rational analysis which would serve to define clearly the frontier between the acts or events which were and which were not sufficient to give rise to rights of custody under the Convention in those cases where the disputed removal is from this jurisdiction and the relevant prior proceedings are within our family justice system.  However, I have reached the reluctant conclusion that it is an impossible task.  As Hughes J said in the present case:

‘Whether an application before a court is such as to give that court rights of custody will, it seems to me, depend upon the particular circumstances of each case.’

However, I do offer the following general guidance:

(i)An application that in its substance seeks only the determination, definition or quantification of contact cannot vest rights of custody in the court: see Re B (Abduction: Custody Rights) [1999] 2 FLR 192.

(ii)An application that in its substance seeks the court’s determination on issues of physical care, parental responsibility to use our current statutory terminology), or the jurisdiction in which the responsibility or physical care will be exercised may or may not suffice to vest rights of custody in the court of issue.  To determine whether rights are vested it is necessary to scrutinise the nature of the application, the merit of the application and the applicant’s commitment to its pursuit.  Obviously the mere issue of a hopeless or insincere application vests nothing in the court which at that stage is no more than a tool of the applicant’s manipulation.  Equally the issue of an arguably meritorious application may be offset if thereafter by inactively or inconsistent statement the applicant belies him seeming intention to obtain judgment.  In the end each case must call for its own evaluation always giving the Article its wide and purposive construction.

(iii)Today I would not give greater status to an application issued in wardship proceedings in the absence of exceptional circumstances.  Wardship has an important continuing role to curb or retrieve abduction where one of the jurisdictions is not a signatory to the 1980 Convention, but where a case is either within or without the Art 5 definition I do not consider that the issue of wardship proceedings should ordinarily be judged to have strengthened the applicant’s hand.”

1. Thorpe LJ’s remarks in relation to wardship proceedings are with respect, clearly correct, having regard to the international nature of the Convention.  In Australia, this Court has no wardship jurisdiction as such, and although it has a welfare jurisdiction that has a number of similarities, the child or the children in question can never become wards of the Court (see Secretary, Department of Health and community Services v JMB and SMB (1992) 175 CLR 218 and s67zc Family Law Act 1975 introduced by the Family Law Reform Act 1995). There is probably some vestigial wardship jurisdiction still vested in State and Territory Supreme Courts but those courts do not exercise jurisdiction under the Convention.

1. As Thorpe LJ pointed out, the Supreme Court in Canada in Thompson and Thompson [1994] 3 FCR 551 followed the decision of the Court of Appeal in C v C (supra) see also Re Thorne v Dryden-Hall [1997] 28 RFL(4) 297. It is also to be noted that the New Zealand Court of Appeal did so in Re Dellabarca v Christie (supra). Reference should also be made to the decision of Judge Carruthers in Re Olson and Olson (Family Court of New Zealand, Porirua, 1994 FP 37/94).

1. The latter decision involved consideration by His Honour of s20 of the New Zealand Guardianship Act 1968 which prevents the removal of children from New Zealand in order to defeat the claim of any person who has applied for custody or access to a child. Section 20(3) of that Act makes it an offence for any person without the leave of the Court to remove a child from New Zealand knowing that there are proceedings pending in relation to custody or access in relation to the child. His Honour considered that the provisions of the Act provided an additional reason why the New Zealand Court had rights of custody in relation to the child.

1. As Mr Allston pointed out in argument in the present case, there is no Australian decision that endorses the concept set out by Court of Appeal in C v C that a right of custody may vest in a court, although Fogarty J, sitting as a member of the Full Court gave such a principle qualified approval in Re Selina and Selina (infra).

1. Thorpe LJ referred to some of the misgivings expressed by Lord Prosser in the Scottish case of Re Seroka v Bellah [1995] SLT 204 but pointed out that the Scottish Court had nevertheless recognised the principle.

1. In the circumstances, I have come to the conclusion that the principle in C v C should be applied in Australia.  I also agree with the statements of principle of Thorpe LJ to which I have referred.

1. I am fortified in this conclusion by the remarks of Fogarty J (with whom the other members of the Court agreed) in Re Selina and Selina (Full Court Barblett ACJ, Fogarty and Anderson JJ,) (unreported delivered 22/5/91). The case involved a request to an Australian Court to determine whether the existence of an injunction granted by an Australian court conferred rights of custody on the applicant. The relevant portion of Fogarty J’s judgment reads as follows:-

20.I might say, in parenthesis, that I think until we have had the advantage of the judgment of the Court of Appeal [in C v C] it would not have been likely that one would have concluded that an injunction of the type which was relevant there and which is relevant here would have been understood in Australian domestic law as conferring rights of guardianship or custody.  Her Lordship said: "Consistently with the aims of the Convention it ought to be understood in a somewhat wider term."

21.Her Lordship then went on to examine the application of that and I should quote from the following passage at page 658, which is in the following terms:

"The father does not have the right to determine  the child's place of residence within Australia but has the right to ensure that the child remains in Australia or lives anywhere else outside Australia only with his approval.  Such limited rights and joint rights are by no means unknown to English family law and no doubt to Australian family law.  Indeed, in article 3 rights of custody are specifically recognised as held jointly or alone.  The Convention must be interpreted so that within its scope it is to be effective.  For my part I consider that the child was wrongfully removed from the jurisdiction in breach of clause 2 of "the relevant orders.  In other words, the view was adopted that the injunction should be treated as amounting to a "right of custody."

22.Neill L.J., at page 663, in a brief passage adopted the same view, and the Master of the Rolls in his judgment agreed with that approach and emphasised the twin components of the Convention, namely, the importance of uniformity and the importance of courts in countries giving full faith and credit, if one may use the Australian term, to orders made in overseas countries.

23.So the conclusion was reached on that appeal in that case that an injunction of the same type as was granted here amounted to a "right of custody" which, in relevant circumstances, would form the basis for a wrongful removal.

24.For my own part I must say that when I first read the judgment of the Court of Appeal I thought it amounted to something of a quantum leap from what had hitherto been the understood interpretation of that term.  However, I think there are a number of reasons why this Court should, at least as at presently advised, adopt that view.  I say "as at presently advised" because this was in the nature of an uncontested appeal where we had only the benefit of argument of one side.  It is possible that a later Full Court of this Court may on a fuller analysis of the issue wish to consider the matter further.  In saying that, I do not in any way suggest that Dr Dickey has not assisted us fully in the presentation of that issue, but I think it is legitimate in uncontested matters to make reference to a caveat of that sort.

25.There are two reasons, I think, why as presently advised one should follow the Court of Appeal approach.

26.Firstly, uniformity itself is highly desirable, particularly between common law countries and, secondly, it appears to me to be a result which is in conformity with the spirit of the Convention which is to ensure that children who are taken from one country to another wrongfully, in the sense of in breach of court orders or understood legal rights, are promptly returned to their country so that their future can properly be determined with in that society.

27.I might add a third one perhaps; namely, that there would be some irony in a situation where the Court of Appeal in England declared the Australian Court to be one thing and the Australian Court declared it to be another, but one need not pursue that.

28.For my part, although I must say that I approached this issue with some reservations, I think it appropriate to adopt that course.  It is in my view critical to a declaration in relation to the older child, so it is important, but I am content to approach it in that way.”

1. In the present case I agree with the view expressed by Hale J, that it would be a most unfortunate situation if a parent who was minded to remove a child from the jurisdiction could successfully do so at a time when he or she was aware that an application was pending in a court seeking to restrain such removal. 

1. It would seem to me that to hold that such an action did not breach the Convention would run contrary to the objects of the Convention and it is not a course that should be encouraged.

1. In the present case there was an order requiring the mother to surrender the child’s travel documents to the Court, of which she had notice and disobeyed, together with the fact that she had notice of the Father’s application to restrain her from leaving the country of which she also had notice, which was to be heard on the very day that she departed with the child.

1. In the circumstances I think that it readily falls into the category of case that Thorpe LJ had in mind in re H as one in which the Family Court of New Zealand had rights of custody within the meaning of the Convention. It therefore follows that I consider that this child was wrongfully removed by the mother from New Zealand.

1. In the circumstances, I do not find it necessary to decide whether the father had rights of custody at the time of the removal of the child although I think it probable that he did so, given the making of the Registrar’s order and the immediacy of his application to restrain the child’s removal from New Zealand.

1. It is quite clear that rights of custody are not limited by the definition to cases where the father has the right to determine where the child shall live. The father in this case did have the right to require that the mother deliver the child’s travel documents to the Court before she departed from New Zealand which would have effectively prevented her from removing the child if she had complied with the order.

1. He also had the right, of which she was aware, to have a Court determine where the child should live, of which she had notice, and that right was due to be exercised on the day that she removed the child from the country.

1. In such circumstances I would have been prepared to hold, if it had been necessary to do so, that he did have rights of custody within the meaning of the Convention.

THE WRONGFUL RETENTION ISSUE

1. The difficulty from the point of view of the applicant about my finding that the child was wrongfully removed from New Zealand in January 1999 are the provisions of Reg 16(1) of the Family Law (Child Abduction Convention) Regulations.

1. Reg 16(1) provides:-

1Subject to subregulations (2) and (3), on application under regulation 14, a court must make an order for the return of a child:

(a)if the day on which the application was filed is less than 1 year after the day on which the child was removed to, or first retained in, Australia; or

(b)if the day on which the application was filed is at least 1 year after the day on which the child was removed to, or first retained in, Australia unless the court is satisfied that the child is settled in his or her new environment.

1. In this case the application was not filed with the Family Court of Australia until the 13^th June 2000, which was considerably more than one year after the child was removed from New Zealand. This was due to no fault of the applicant but rather an unfortunate chain of circumstances that were not of his making.

1. The applicant sought to avoid the consequences of Reg 16 (1)(b) by relying upon the New Zealand Court’s order of the 29^th September 1999 ordering that the father be an additional guardian of the child.

1. As I understand the argument, it is suggested that there was a wrongful retention from the 29^th September 1999 in breach of the father’s rights of custody that he acquired on that day and that therefore Reg 16(1)(a) applies, and the child must be returned.

1. The Applicant sought to rely upon the decision of the House of Lords in In Re S (a Minor) (House of Lords 24 July 1997). That was a case where, following the death of a mother in England, in circumstances where the father then had no parental rights, members of a child’s maternal family took him to Ireland, it being common ground that England was his country of habitual residence prior to his removal.

1. Two days after his removal an Irish Court made interim orders in favour of his maternal family and on the same day an English Court made interim orders in favour of the father and ordered the child’s return to England.

1. The major issue related to whether the child’s habitual residence in England continued until the making of the order of the English court, which provided the basis of its jurisdiction.

1. This issue was determined in favour of the father.

1. However a second issue arose because it was contended and conceded that at the time of the removal of the child, his removal was not unlawful as at that time the father had no rights of custody in relation to him. The argument was put that if his removal was not unlawful, his subsequent retention could not be unlawful either.

1. Counsel for the Applicant in this case relied upon portions of the speech of Lord Slynn as follows: -

033 “A child must, thus, be returned pursuant to Article 12 if there has been either a wrongful removal or a wrongful retention within the meaning of Article 3. These are separate events occurring on specific occasions and were said in In re H. (Minors) (Abduction: Custody Rights) [1991] 2 A. C. 476 to be mutually exclusive concepts. Lord Brandon of Oakbrook said, at p 500B:

“For the purposes of the Convention, removal occurs when a child, which has previously been in the State of its habitual residence, is taken away across the frontier of that State; whereas retention occurs where a child, which has previously been for a limited period of time outside the State of its habitual residence, is not returned to the State on the expiry of such limited period.”

1. Subsequently at 046 Lord Slynn, after giving an example of the way changes in agreement in relation to a child whom has been lawfully taken abroad may change the nature of retention and whether it is wrongful or otherwise said:

"This example is only one way in which a lawful retention may become a wrongful retention. The same in my opinion can happen where a parent had no parental rights when a child was removed and initially retained in a way, which was not unlawful. If subsequently he acquires such rights and demands the return of the child then the retention may become wrongful.”

1. Counsel for the applicant sought to argue that the concept of removal being a separate event from retention was directly applicable to the present case and that the mother’s wrongful retention of the child accordingly ran from the New Zealand Family Court’s order of 29^th September 1999 giving him joint parental responsibility for the child.

1. I am unable to accept this proposition. I have already found that the removal of the child from New Zealand was wrongful and in breach of the Convention. It follows that if this is correct, his subsequent retention by the mother in Australia was also unlawful and dated at least from the time that she arrived in Australia with the child.

1. The subsequent acquisition by the father of joint parental responsibility did not make the retention any more unlawful or start a new period of time running. The relevant portion of the Regulation refers to the time running from when the wrongful retention first occurs.

1. Therefore the fact that the father later acquired additional rights does not alter the fact that the date when the child was removed to or first retained in Australia was more than one year prior to the filing of the application. The situation in Re S is distinguishable in that the original removal and retention was not unlawful in that case.

1. Such an interpretation also seems to me to be more in line with the intention of the Convention, which is not only to provide for the return of children who have been wrongfully abducted from their country of habitual residence, but also to protect such children in circumstances where the passage of time means that they are settled into their new environment.

THE SETTLEMENT ISSUE

1. I now turn to the issue of whether the mother has established that the child is settled in his new environment.

1. If I conclude that he is so settled, a secondary issue arises as to whether under the Regulations, I retain a discretion to order his return and whether, if such a discretion exists, I should exercise it to order a return.

1. First, I think that it is apparent that the term “settled in his new environment” in Reg 16(1)(b) should be given its ordinary natural meaning and should not be given a restrictive interpretation - see De L v Director General NSW Department of Community Services(1996) 187 CLR 640 at 655-657; Director General Department of Community Services v M and C (1998) FLC 92-828; Townsend v Director General Department of Families, Youth and Community Care(1999) FLC 92-842.

1. In Director General Department of Community Services v M and Cthe Full Court said, with reference to the view expressed by Bracewell J in Re N (Minors) (Abduction) 1991 FLR 413 at 417-8 as apparently adopted by the Full Court of this Court in Graziano and Daniels (1991) FLC 92-212:

“88.It was put by Ms Hartstein that the statement of principle by Bracewell J in Re N, approved by the Full Court in Graziano's case, meant that in considering whether children are settled within the meaning of the Regulations, it is necessary to look not only at the past and the present situation, but also into the future. She said that if this were done it would not be possible to find that the children were settled in Australia because of their uncertain immigration status. She in fact went further and submitted that it was probable that the children would be required to leave Australia and that this meant that the grandmother had failed to discharge the onus upon her of establishing that the children were settled in Australia. 

89.In that case her Ladyship said at 417-418 that the word "settled" should be given its ordinary natural meaning. She said that it involved both a physical element of being established in a community and an environment and also an emotional constituent denoting security and stability. She then referred to the decision of Purchas LJ in Re S and then continued: -

"He (Purchas LJ) then referred to a `long term settled position' required under the article, and that is wholly consistent with the approach of the President in M v M and at first instance in Re S. The phrase `long term' was not defined, but I find that it is the opposite of `transient'; it requires a demonstration of a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent."

90.Apart from Graziano, this passage was also cited with approval by Moss J in Director General of the Department of Community Services (Central Authority) and Apostolakis 21 Fam LR 1 at 8.

91.In our opinion this statement does not represent the law so far as the Australian Regulations are concerned. As the majority of the High Court pointed out in De L's case it is the Regulations that must be applied. Nowhere in the Regulations are the words `long term' to be found and there is in our view no warrant for importing them. The test, and the only test to be applied, is whether the children have settled in their new environment. That test is to be applied either at the time of the application being made or at the time of trial. It is unnecessary to consider which date is the relevant one in the context of this case, given the short period between the two dates.”

1. In Director General, Dept of Families, Youth and Community Care v Moore (1999) FLC 92-841 at paras 68 - 69, the Full Court (Ellis ACJ, Finn and Chisholm JJ) said: -

   “68.It is not entirely clear to us that the Full Court in Graziano went so far as to adopt what Bracewell J. had said in Re N (following Purchas LJ. in Re S (A Minor) (Abduction) [1991] 2 FLR 1) regarding the need for a "long-term settled position" or for "a projection into the future". Nevertheless, having regard to what was said by the High Court majority in De L (at 655) concerning the need to apply the Convention Regulations without any "additional gloss", we agree with the statement of the Full Court in M and C that the only test to be applied under Regulation 16(1)(b) is whether the child has settled in his or her new environment. 

   69.It is also important to say that before us there was no challenge to the correctness of M and C.”

1. I might say that the reasoning of the Full Court in M and C was based firmly upon the High Court’s reasoning in De L that the words of the Regulation are to be given their plain meaning without any additional gloss. Whether or not the Full Court in Graziano did adopt the position of Bracewell J in Re N, I consider that the matter was left sufficiently ambiguous by it, that it gave rise to the need to clarify the matter in M and Cfollowing the decision of the High Court in Re De L.

1. It also seems clear that the onus lies on the mother to establish the proposition that the child is settled in his new environment. I do not regard this as a particularly heavy onus but simply the establishment of an issue of fact determined on the balance of probabilities.

1. In the present case I am satisfied on the balance of probabilities that the child has settled in his new environment.

1. Counsel for the Applicant sought to rely upon several United States authorities that suggested that a child of this age could not be treated as settled in his environment - see Re David S. v Zamira S, 151 Misc. 2d 630, 636, 574 N.Y.S. 2d 429, 4&3 (1991) (where it was held that children 3 and 1/2 “are not yet involved in school, extracurricular, community, religious or social activities which children of an older age would be. The children have not yet formed meaningful friendships.”) This decision was cited with approval in Re Robinson v Robinson (2d. Co. 1997) 983 Fed. Supp. 1339.

1. With respect to the courts that made those decisions, I am unable to accept their validity. They seem to involve the addition of a gloss to the meaning of the Regulations which is not supported by anything other than a pre-supposition on the part of the relevant courts that very young children are incapable of settling into a new environment, or alternatively an assumption that the environment of a very young child is so confined that a move of their principal caregiver with them is all that is needed to preserve their environment.

1. It is true that in the present case the second proposition receives some evidentiary support from the evidence of [Ms G]. However, I regard the other evidence given and in particular that of Mrs [I] as far more convincing. Mrs [I] is an experienced professional who knows the child and the family in question and with whom she has extremely frequent contact. Ms [G's] evidence is entirely theoretical and she had no opportunity to observe the child or the family dynamics.

1. Her evidence seemed to be predicated upon the fact that the immediate family do not form part of the environment of a child or that what is meant by the child’s new environment in the Convention is the physical or outside environment from the home.

1. In my view, in the case of a very young child such as [BAS], it may be that his environment is more constrained than that of an older child, but I consider that his home environment is likely to be correspondingly more important to him. If he is settled in it as I find that he is, then this would appear to be the very situation that the Convention envisages, where he should not be returned having regard to the passage of time. The environment that I must consider is the environment of this child and not some theoretical environment.

1. Factors that convince me that the child has settled into his new environment are as follows: -

• The child has been living in a settled home in Tasmania since the first half of 1999;

• The child forms part of a family consisting of the mother, her partner Mr [N] and the child’s two half siblings and that situation has continued since that time;

• Mrs [I] considers that it is a particularly satisfactory and appropriate family environment in which the child has flourished since that time;

• It is far from clear that all of the family would be able to move to New Zealand or that any of them, apart from the mother and the child, will be able to do so and if I order the child’s return thus re-create the present environment in that country;

• There are particularly close bonds between the child and his sibling [CAS] and with Mr [N] that are likely to be disrupted by a move to New Zealand;

• The child is well settled into a day care situation where the carers and the other children attending are well known to him;

• He has begun to be familiar with local places and landmarks and thus to settle into the physical environment. In this regard I accept the evidence of Mrs [I].

DISCRETION TO RETURN

1. I now turn to this issue. The matter has been the subject of discussion in a number of cases and there are conflicting first instance decisions about it; see Re State Central Authority v Ayob (1997) FLC 92-746 per Kay J; Re Director-General, Department of Families, Youth and Community Care v. Thorpe (1997) FLC 92-785 per Lindenmayer J.

1. In Moore (supra) the Full Court commented as follows: -

   “73. As we will shortly discuss, it is an open question whether there is in fact any discretion in the court to order the return of a child whom the court has found is settled in Australia within the meaning of Regulation 16(1)(b). However, on the assumption that such a discretion exists, we are not satisfied that Warnick J. erred in his exercise of it.

   74. One of the difficulties with the arguments in favour of the existence of such a discretion is that unlike, for example, the discretion in Regulation 16(3) (which permits the court to refuse to make an order for the return of the child if a person opposing the return satisfies the court of certain specified matters), the Regulations do not specify any matters which are to be taken into account in the exercise of such a discretion (if it in fact exists). Accordingly, any such discretion must be a broad discretion, and if a primary judge exercises such discretion in the considered, reasoned and judicial manner in which Warnick J. did in this case, it would be difficult for an appellate court to interfere with that discretion, particularly bearing in mind established limitations on appellate interference with discretionary decisions. We would certainly not have been disposed to interfere with his Honour's exercise of the purported discretion in this case.

   75. As to the important question of whether such a discretion exists at all, the present state of the law in Australia was usefully summarised by the Full Court in the recent decision of M and C where it was said (at 85,491):

   ‘95. Before leaving this aspect of the appeal, we think it is necessary to draw attention to the obiter view taken by Kay J in Ayob's case as to whether in a case where one year has elapsed since the child's wrongful removal (or retention) and the filing of an application pursuant to the Hague Convention, a finding under reg 16(1) that a child is settled in a new environment, still leaves a discretion in the Court to order the return of a child.

96. At 84,072, his Honour respectfully differed from the approaches of Bracewell J in Re N at 417 and Purchas LJ in Re S (A Minor) (Abduction) (1991) 2 FLR 1 at 25 to the extent that those cases "within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment...” Although that set of circumstances was not found to be the case before his Honour, he said that had such facts been the case "that would be the end of the matter under the Hague Convention and under the Regulations." In his Honour's view, the matter would fall to be decided under common law or other statute.

97. While the factual aspects of the children's being "settled" was subject to a good deal of argument in this case, the consequences in respect of discretion under the Regulations was not. We therefore do not propose to deal with that issue which should await full legal argument.

98. We should say however, that we are not necessarily persuaded that Kay J's view is correct.’

76. In the present case, the Queensland Central Authority put substantial written submissions before Warnick J. (see Appeal Book 266-268) and also before us in support of the existence of such a discretion, with particular reliance being placed on the decision of Lindenmayer J. in Director-General, Department of Families, Youth and Community Care v. Thorpe (1997) FLC 92-785 and also on the Scottish appellate decision of Soucie (1995) SLT 414.

77. However, before us Counsel for the respondent mother chose to put no argument on this question of whether or not the alleged discretion exists. In these circumstances, given the very great importance of the question, we consider that it would be undesirable for us to express a concluded view on it without the benefit of full argument. We consider that the preferable course is for the matter eventually to be argued before a Full Bench of the Appeal Division of this court in a case in which the issue of the discretion squarely arises. Such a case would be where a judge had found the child settled in Australia within the meaning of Regulation 16(1)(b), but nevertheless has purported to exercise the discretion to order the return of the child to an overseas country. In a case such as the present, it is sufficient to assume the existence of the discretion. We also suggest that when this question is fully argued, the Commonwealth Central Authority (being the Secretary to the Attorney General's Department) or indeed the Attorney General himself, might be invited to make submissions to the court.”

1. Against this background, I propose to deal with the matter on the assumption that a discretion does exist, without expressing any view as to whether it does so or not. If there is a discretion, then in this case I have no hesitation in exercising it in favour of refusing an order for return.

1. This child has now been in Tasmania for most of his life. He forms part of a stable and supportive family and has close association with his siblings. I have already summarised the evidence in this regard.

1. It is obvious that if he were to be returned to New Zealand, a New Zealand Family Court judge would almost certainly order his return to Australia, subject to the making of adequate access arrangements. This is not a case where the father is mounting a serious application for custody, nor could he, given the background of this matter. Thus the whole exercise of making a return order under the Convention would in this case be pointless and extremely disruptive to this family.

1. While I sympathise with the position of the father in this case, he is not left without a remedy and there is no reason why he could not make an application in this Court for contact and take advantage of video conferencing technology if his financial position is such as to make it difficult for him to come to Australia. I am conscious that the behaviour of the mother in leaving New Zealand left much to be desired and it is unfortunate that the application under the Convention was not made much earlier. This was in no sense the fault of the father. However, none of these facts alter the present situation.

CONCLUSION

1. I accordingly consider that the application should be dismissed.

I certify that the previous  124   numbered paragraphs are a true copy of
the edited reasons for judgment delivered by the Honourable Chief Justice.

Danny Sandor
Senior Legal Associate to the Chief Justice