Secretary, Department of Communities and Justice & Caladine
[2021] FedCFamC1F 179
•5 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(Division 1)
Secretary, Department of Communities and Justice & Caladine [2021] FedCFamC1F 179
File number(s): SYC 5734 of 2021 Judgment of: WILLIAMS J Date of judgment: 5 November 2021 Catchwords: FAMILY LAW – CHILD ABDDUCTION – HAGUE CONVENTION – Children brought to Australia from USA – Consideration of jurisdictional facts – Dispute regarding rights of custody at the time of removal and whether those rights amount to rights of custody within the meaning of the Regulations – Held – the father was exercising rights of custody and the removal of the children from the USA was a breach of those rights – removal of the children was wrongful. Legislation: Evidence Act 1995 (Cth) s 140
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16
Family Law Act 1975 (Cth) s 111B
Cases cited: De L v Director General, NSW Department of Community Services (1996) 87 CLR 640
Department of Communities, Child Safety and Disability Services & Martinez [2017] FamCA 1
DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services (2001) 206 CLR 401
DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401
HZ & State Central Authority [2006] FamCA 466
J v Director-General, Department of Community Services [2003] FamCA 929
MW v Director-General, Department of Community Services [2008] HCA 12
State Central Authority & Del Rosario [2019] FamCA 607
Division: Division 1 First Instance Number of paragraphs: 70 Date of hearing: 21 October 2021 Place: Melbourne Counsel for the Applicant: Ms Hartstein Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice Counsel for the Respondent: Mr Green Solicitor for the Respondent: Parker Family Law ORDERS
SYC 5734 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS CALADINE
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The further hearing of the Form 2 filed 9 August 2021 and the Form 2A filed 26 August 2021 be adjourned for trial as a 2 day matter on 22 November 2021.
2.The respondent file and serve any affidavit sought to be relied upon 14 days prior to trial.
3.The applicant file and serve any further affidavit sought to be relied upon 7 days prior to trial.
4.Both parties file and serve an Outline of Case 72 hours prior to trial.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Caladine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
This is an application by the Secretary, Department of Communities and Justice (“the State Central Authority”) filed on 9 August 2021 seeking the return to the United States of America (“USA”) of the children, X born in 2017 and Y born in 2019, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Caladine is the mother of the children. The requesting parent, Mr B who lives in the USA, is the father of the children.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal of a child from his/her country of habitual residence. Both Australia and the USA are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the children to his/her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the children. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 87 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
The application before the court was a threshold hearing as to the jurisdictional facts. Neither counsel sought to cross-examine the single expert witness as to applicable law in the USA, and the hearing proceeded by way of submissions.
The State Central Authority asserts that the children have been wrongfully removed from the USA in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the children’s removal;
(b)the children are under the age of 16;
(c)the children were habitually resident in the USA;
(d)the requesting parent, the father, has rights of custody in relation to the children, which he was exercising immediately prior to the children’s removal; and
(e)the removal of the children was in breach of the father’s rights of custody.
The respondent resists the application for a return order on the basis that as the father did not have rights of custody at the time of the children’s removal, he was not exercising those rights immediately prior to the children’s removal and the removal was not in breach of the father’s rights of custody. There was no dispute about the other jurisdictional facts.
Both parties agree a further hearing will be required if the court determines the father did have rights of custody. If so, the respondent asserts that the Court should refuse to exercise its discretion to return the children because there is a grave risk the return of the children to the USA will expose them to harm (reg 16(3)(b)).
ONUS OF PROOF
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the removal was wrongful: DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services (2001) 206 CLR 401.
PRELIMINARY MATTERS
The hearing was conducted electronically via Microsoft Teams and I wish to express my appreciation to both counsel for the professional and courteous manner in which the proceedings were conducted.
DOCUMENTS RELIED UPON BY THE PARTIES
The State Central Authority relied upon the following documents:
(a)Form 2 filed 9 August 2021;
(b)Outline of Case filed 18 October 2021.
The respondent relied upon the following documents:
(a)Form 2A filed 26 August 2021;
(b)Affidavit of Mr D, filed 14 October 2021;
(c)Report of the Single Expert Witness Mr C, filed 15 October 2021;
(d)Outline of Case filed 18 October 2021.
BACKGROUND
The father is a citizen of the USA and the mother is a dual citizen of Australia and the USA. The father currently resides in the USA and the mother currently resides in Australia with the children.
The parents were married in City E in 2016. The children were born in the USA and prior to their removal to Australia in August 2020, the children were habitually resident in the USA.
Both parents make allegations of family violence against the other.
In October 2019, the father enrolled the children in the Children’s Passport Insurance Alert Program as he feared the mother would kidnap the children.
On 5 December 2019, the mother filed proceedings in the State F court and obtained ex parte orders pertaining to the care of the children and temporary restraining orders against the father. The father was served with that application on 10 December 2019.
On 12 December 2019, the father filed for divorce, which triggered automatic restraining orders.
According to the father, on 27 April 2020, the mother filed the first of two ex parte applications seeking to leave the USA for Australia. The application was refused.
On 15 July 2020, the State F Superior Court ordered the mother to facilitate time between the father and the children.
On 25 August 2020, the mother and the children entered Australia, where they have since remained.
On 4 September 2020, when the mother failed to appear in the State F Court, the Court ordered the mother to return the children to the USA by 12 September 2020 and to surrender the children’s passports to her attorney.
On 11 September 2020, the mother sought an extension of time to return the children to the USA. The mother did not return the children to the USA.
On 9 August 2021, a Form 2 Application for return of the children was filed by the State Central Authority.
Did the father have rights of custody at the time of removal?
I will now consider whether the father had rights of custody at the time of the children’s removal from the USA.
Regulation 4 provides:
Reg 4 Meaning of rights of custody
(1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of sub-regulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)For the purposes of this regulation, rights of custody may arise:
(a)by operation of law; or
(b)by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
Rights of custody are to be determined by a three step process; see J v Director-General, Department of Community Services [2003] FamCA 929.
The process requires:
(a)a determination of what rights, if any, did the father have under USA law in relation to the children at the time of removal;
(b)whether those rights amount to “rights of custody” within reg 4;
(c)was the removal of the children in breach of those rights.
I will address each of the requisite steps.
What rights, if any, did the father have under USA law in relation to the children at the time of removal
First, I will consider the nature of the rights of the parties on the basis of the single expert evidence before the court.
Pursuant to consent orders made on 31 August 2021, both parties engaged Mr C, a State F attorney, to provide evidence on the following issue:
The rights (if any) relating to the care of the person of the children the subject of this application and in particular, the right to determine the place of residence of the children possessed by the requesting applicant father Mr B on 23 August 2020 (the date that the children were physically removed from the United States America) under the applicable laws of the United States of America, specifically the laws of the State of F.
The chronology of events and orders relevant to the parties referred to in his report is as follows:
(a)on 5 December 2019, the mother filed a request for a Domestic Violence Restraining Order (DVRO) in the Superior Court of State F, in City G. Her request was ex parte and without notice to the father and sought temporary restraining and custody orders. Those orders included a prohibition on the parent with custody removing the children from State F;
(b)on 12 December 2019, the father filed a Petition for Dissolution of Marriage which enlivened four automatic restraining orders (“ATRO”). The ATRO’s were effective against the father upon signature of the petition and against the mother when she had been served with the process, which occurred on 25 February 2020. The relevant ATRO (pursuant to section 2040 of the State F Family Code) restrains:
“both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court”.
As from 25 February 2020 the ATRO’s were in effect against both parties.
(c)on 15 July 2020, the Court awarded the husband monitored visitation with the minor children and both parties stipulated the DVRO’s would continue to a hearing date on 4 September 2020;
(d)as at 23 August 2020, the mother removed the children from State F, violating both the 5 December 2019 and 12 December 2019 orders which restrained her from removing the children from State F.
At page 6 of his report, the single expert refers to the rights of both of the parents as at 5 December 2019 in the following paragraphs.
The mother as at 5 December 2019:
(i)had the right to have the children reside with her and to reside with them within the state of State F;
(ii)could make decisions about the children’s health, education and welfare;
(iii)was not permitted to relocate the children outside the state.
The father as at 5 December 2019:
(i)had intact parental rights;
(ii)his custodial rights were limited to secondary visitation rights as ordered by the Court;
(iii)had the right to request from the Court custody orders at the further hearing of the mother’s DVRO.
As at 12 December 2019, both parents were restrained from removing the children from State F because of the automatic ATRO pursuant to State F Family Code section 2040.
According to Mr C, a sole custody order does not serve to “terminate” the other parent’s parental rights or due process interest in parenting, he or she has secondary visitation rights and retains the right to seek and obtain a custody modification based on a proper showing of changed circumstances. A custody order issued as part of a domestic violence proceeding is not a final custody determination and does not carry a presumption that the custodial parent has the right to relocate children.
Do those rights amount to rights of custody within the meaning of the Regulations
Secondly, I will consider whether the rights the father possesses in State F are rights of custody within the meaning of the Regulations.
Rights of custody have been definitively considered by the High Court of Australia in MW v Director-General, Department of Community Services [2008] HCA 12. The plurality of the High Court said at [77], [78] and [79] the following:
77.Some difficulty arises from the use of the term "right" in the expressions in reg 4 (and in Art 5) "rights of custody" and "right to determine". Even when used in a broad sense, to speak of a "right" in one person suggests a correlative duty, obligation, disability or liability in others. Regulation 4 is so drawn that "rights of custody", and, by inference, those of determination of place of residence, may arise by reason of a judicial decision (reg 4(3)(b)). Here, the Access Order gave rise to rights in each parent with correlative duties or obligations in the other parent to observe the requirements of the Access Order.
78.But unlike the court orders in some of the cases arising directly under the Convention or specific provisions made for parental rights and duties by legislation considered in other cases, the Access Order was not addressed to and imposed no prohibition on, in the absence of consent by both parents, the removal of the child from the jurisdiction of the New Zealand court which made the order.
79.A "right of veto" of that nature may give rise to a right in each parent to determine that there be no change in the "place of residence", using that phrase to refer to the Convention country where the child habitually resides; the right of each is attended by the correlative obligation of the other party to observe the status quo and the observance of the obligation will attract whatever remedies are given by the judicial or administrative authorities of that Convention country of habitual residence. That power of prohibition of change may answer the phrase in reg 4 (and in Art 5) "the right to determine ...". The majority of the Full Court referred to decisions in Australia and other Convention countries in which that proposition found favour and Finn J was prepared to accept them. The Authority supported this line of authority.
(Citations omitted)
Counsel for the State Central Authority submitted that the facts in this matter are similar to those in Department of Communities, Child Safety and Disability Services & Martinez [2017] FamCA 1 (“Martinez”). In Martinez, Carew J held a father had rights of custody, as the mother could not change the child’s country of residence, without his consent or an order of the court.
Bennett J in State Central Authority & Del Rosario [2019] FamCA 607 at [9] referred to rights of custody as expressed in reg 4 as:
All measures relating to the care and upbringing of a child, access to or spending time with a child and the right to veto the removal of the child from the contracting state, fall within the widely defined scope of rights of custody under the Convention, irrespective of the names or labels given to those rights in any state’s domestic law.
Counsel for the State Central Authority submitted that the father’s rights in State F amount to rights of custody, within the meaning of the regulations, because he had a right of veto in relation to whether the children remained living in State F.
The father’s right of veto in relation to the children arises pursuant to Article 1 of the State F Family Code 2040, as the father had the right to consent to the mother’s relocation of the children outside the state of State F, and in the absence of such consent, the mother had no right to take the children out of the state.
Section 2040(1) of the Family Law Code of the State F provides:
2040. (a) In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
It was further submitted that as at the date of wrongful removal, the father continued to have parenting rights despite the mother’s temporary custody order, including a right of veto of the removal of children from State F and therefore had rights of custody within the meaning of regulation 4.
Counsel for the mother submitted in order to ascertain the father’s rights, it was necessary to closely examine the terms of the 5 December 2019 orders, (DV-110) and (DV-140). Paragraph 3 of the orders of DV-140 provides that the mother has both legal and physical custody of the children. Paragraph 12 of the orders of DV-110 provide “[t]he parent with temporary custody of the child must not remove the child from State F unless the court allows it after a noticed hearing (Fam. Code, 3063)”.
Paragraph 7 of DV-140 as annexed to the Form 2 differs from paragraph 7 of DV-140 annexed to the affidavit of Mr D, the mother’s lawyer, filed 14 October 2021. The Orders annexed to the affidavit are certified copy orders made in the Superior Court of State F on 5 December 2019 and accord with the deponent’s recollection of orders made that day. The submissions of the mother’s counsel were predicated on the correct orders of 5 December 2019, as those annexed to the affidavit.
Paragraph 7 of DV-140 annexed to the Form 2 includes an order “Mom must have written permission from the other parent, or court order, to take the children outside of the state of State F”, whereas paragraph 7 of the Orders annexed to the affidavit is not ticked.
There was no suggestion in any manner whatsoever that the State Central Authority had anything to do with the inconsistencies of paragraph 7 of the 5 December 2019 Orders.
The effect of the 5 December 2019 Orders annexed to the mother’s lawyer’s affidavit is that there is no right of veto in favour of the father to prevent the mother taking the children outside State F. The restraint applicable at that time was an absolute prohibition, subject only to an order of the court.
Counsel for the mother submitted that the absolute prohibition in the Orders of 5 December 2019 prevails over the subsequent orders of 12 December 2019, because even if the father had given permission for the children to leave the state, pursuant to the 12 December 2019 Orders, the Order of 5 December 2019 prevented her doing so, because she also needed the permission of the court.
In support of that submission, counsel for the mother referred to the single expert report. In particular:
(a)the statement that all temporary restraining orders were continued and remained in effect until 15 July 2020;
(b)at the hearing on 15 July 2020, the parties stipulated to continue both DVRO’s to a hearing date on 4 September 2020;
(c)as at 5 December 2019, the mother had the right to reside with the children in State F;
(d)as at 5 December 2019, the father’s parental rights were intact, but his custodial rights were limited to secondary visitation and a right to request modification of the custody orders at the hearing of the mother’s DVRO;
(e)the use of the words “as well” in the fifth paragraph of page 6 of the report leads to the conclusion that the orders of 12 December 2019 do not overtake the orders of 5 December 2019.
It was further submitted:
(a)the single expert report does not refer to the father’s rights as a right of veto;
(b)both parties had the opportunity to cross-examine the single expert, but neither elected to do so;
(c)the State Central Authority bears of onus to establish the jurisdictional facts;
(d)Martinez is distinguishable because the law of El Salvador allowed the father a right of veto.
In response to the submissions of the mother’s counsel, counsel for the State Central Authority submitted:
(a)the questions posed to the single expert witness did not include which order had precedence;
(b)the conclusion of the single expert was that neither parent had the right to remove the children from State F;
(c)although he does not specifically refer to a right of veto, he has not ignored the effect of the ATRO of 12 December 2019;
(d)the order of 5 December 2019 was made on an ex-parte basis without notice to the father and imposed restraints only on the mother;
(e)the order of 12 December 2019, for the first time include restraints on both parents and the right to remove the children from State F, with the consent of a parent.
I do not accept the submission of Counsel for the mother that the ex parte order of 5 December 2019 takes precedence over the subsequent order of 12 December 2019, which applied to both parents, and enables the children to be removed from State F, with the written consent of the other parent, nor his arguments in support of that proposition. It is clear that as at 12 December 2019, both parents had a right of veto of removal of the children from State F and in the absence of parental consent, an order of the court would be required. After considering the submissions of both counsel, I accept that as at 12 December 2019, the father’s rights include the right to veto the removal of the children from State F. I find the father possesses rights of custody within the meaning of the relevant Regulation.
Was the removal of the children in breach of those rights
Thirdly, I will consider whether the removal was in breach of the father’s rights.
There was no dispute that the mother’s removal of the children from State F was contrary to both the orders of 5 December 2019 and 12 December 2019 and that she did not have the father’s consent to remove the children.
According to counsel for the State Central Authority, the father was exercising his rights of custody immediately prior to the wrongful removal of the children by both exercising his visitation rights and pursuing his claims for custody and restraining orders in the State F court.
Counsel for the mother did not make any submissions about this issue, other than as the father’s rights do not amount to rights of custody, it is not necessary to consider whether the father was exercising his rights or was there a subsequent breach of those rights.
I am satisfied that the father had rights of custody at the date of removal of the children from State F, which included a right to veto the removal of the children from State F, and that he was exercising those rights at the time of removal of the children from the USA. The removal of the children from State F on 23 August 2020 was in breach of those rights.
I am satisfied that all of the requisite jurisdictional facts have been satisfied to the required standard, and that the children’s removal from State F, USA on 23 August 2020 was wrongful.
The mother seeks to pursue a regulatory exception to return, namely that there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place the children in an intolerable situation (reg 16(3)(b)).
The hearing for the determination of the regulatory exception was contemplated during the mention hearing on 27 August 2021 and has been fixed for 22 November 2021 for two days.
I will make procedural orders relevant to that hearing.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 5 November 2021
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