SECRETARY OF THE ATTORNEY-GENERAL’S DEPARTMENT & MCDONALD
[2013] FamCA 8
•22 January 2013
FAMILY COURT OF AUSTRALIA
| SECRETARY OF THE ATTORNEY-GENERAL’S DEPARTMENT & MCDONALD | [2013] FamCA 8 |
| FAMILY LAW – CHILD ABDUCTION - Hague Convention - Where the Central Authority is applying for access orders under Part 4 of the Regulations giving effect to the Hague Convention - Where the Full Court of this Court ruled six years ago against making a return Order on the basis of grave risk - Whether the current application ought be summarily dismissed or dealt with under Part VII of the Family Law Act 1975 (Cth) or under the regulations of the Act giving effect to the Hague Convention - Whether it is “desirable” that an Order be made under the relevant Regulations – Approach to be taken and law to be applied to determination |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 Director-General, Department of Family and Community Services v Brooks [2012] FamCA 179 Director-General, Department of Family and Community Services & Raddison (2012) FLC 93-500 Director-General, Department of Family, Youth and Community Services v Reissner (1999) 25 Fam LR 330 Fencott v Muller (1983) 152 CLR 570 McCall and State Central Authority; Attorney-General of the Commonwealth (1995) 18 Fam LR 307 McDonald & Director General, Department of Community Services (NSW) (2006) FLC 93-297 Police Commissioner of South Australia & Castell (1997) FLC 92-752 State Central Authority v Peddar (2008) 219 FLR 273 State Central Authority v Quang (2009) 42 Fam LR 288 Shailer & Shailer [2007] FamCA 1312 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 |
| APPLICANT: | Secretary of the Attorney-General’s Department |
| RESPONDENT: | Ms McDonald |
| FILE NUMBER: | BRC | 7335 | of | 2012 |
| DATE DELIVERED: | 22 January 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 26 October 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Foley |
| SOLICITOR FOR THE RESPONDENT: | Ms Manson |
Orders
This application be adjourned for mention to a date to be fixed not less than thirty (30) days hence pending the filing of an application for orders under Part VII of the Act (“the parenting orders application”).
The requirements for compliance with pre-action procedures, as provided for in the Family Law Rules 2004, are dispensed with in respect of the parenting orders application.
Upon the filing of the parenting orders application this application be stayed pending the hearing and determination or finalisation of the parenting orders application.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary of the Attorney-General’s Department & McDonald has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7335 of 2012
| Secretary of the Attorney-General’s Department |
Applicant
And
| Ms McDonald |
Respondent
REASONS FOR JUDGMENT
Mr V (“the Father”) was born in Belgium in 1968 and is thus now 43 years of age. He continues to reside in Belgium. Ms McDonald (“the Mother”) was born in Australia in 1971 and is thus now 41 years of age. The Mother has resided in Australia since May 2005 and currently resides in Northern New South Wales. The Mother is an Australian national.
The parties lived together in Belgium from 1996 until February 2005. The parties married in Belgium in January 2001. The only child of the relationship, S, (“the child”), was born in November 2004 in Belgium and is thus now eight years of age.
In February 2005, when the child was only some four months of age, the parents finally separated when the Mother left the parties’ home with the child to live in a women’s refuge.
On 13 May 2005 the Mother, without the Father’s knowledge or consent, removed herself and the child from Belgium and travelled to Australia where they have lived since.
On 13 September 2005, the Director-General, Department of Community Services (NSW) as State Central Authority filed an application in the Family Court of Australia in the Sydney registry for an order for return of the child to Belgium under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”)[1] giving effect to the provisions of the Hague Convention on the Civil Aspects of International Abduction (the “Convention”).
[1] Made pursuant to s 111B of the Family Law Act 1975 (Cth) (“the Act”).
In responding to that application the Mother, whilst conceding the 13 May 2005 removal of the child to Australia from Belgium was contrary to the Father’s custodial rights, alleged that there was a grave risk that the return of the child to Belgium would expose the child to physical or psychological harm or otherwise place her in an intolerable situation.
On 22 March 2006, a Judicial Registrar ordered that the child be returned to Belgium upon conditions as agreed by the parties or as otherwise ordered by the court.
The Mother pursued a judicial review of that decision, seeking that the return order be discharged or in the alternative seeking the imposition of certain conditions on return of the child to Belgium. Such conditions included that the Mother should accompany the child; that the arrangements for the return would not be disclosed to the Father; that weekly urinalysis results be made available by the Father; and other conditions including a restriction on communication by the Father with the Mother; an agreement for the provision for financial support by the Father to the Mother and the child, and that the Father should agree to a restraining order being issued by an appropriate court in Belgium to prevent him approaching or harassing the Mother, the child, or other friends and family members.
The review was heard by a Judge in June 2006. It was argued by the Mother at that hearing that there was a real risk of abuse to her and the child if she were required to return to Belgium because of the Father’s history of family violence in the relationship; his drug and alcohol abuse; and his poor mental health. The Mother also alleged hardship on the basis of her lack of housing in Belgium, inadequate financial support, and the absence of legal representation in that country.
The Mother’s contentions were supported by expert evidence. A clinical psychologist gave evidence that a worker at the refuge where the Mother had stayed from February to May 2005 had confirmed that the Father had, having located the Mother’s whereabouts at the refuge, threatened the Mother while she was at the refuge, including threatening to burn himself in front of the refuge. Other expert evidence corroborated concerns including the evidence supplied by a report from the Central Authority’s expert, an associate professor of psychiatry. In summary it seems that the experts provided evidence to the effect that the Mother had suffered Post-Traumatic Stress Disorder and/or traumatic anxiety as a result of exposure to domestic violence; and there was evidence indicating mental instability on the part of the Father and that he had been threatening and violent towards the Mother and the child as well as himself.
The trial judge gave judgment on 12 July 2006. The trial judge apparently accepted the evidence adduced on the Mother’s behalf as to the grave risk of harm, but concluded that such difficulties could be met by conditions. These included the Mother being given the Belgium equivalent of Legal Aid; being provided with economy class air tickets for the return flight and visas allowing her to reside with the child in Belgium and to undertake paid employment there. The trial judge also found that a return by the Mother to Belgium with the child ought be conditional on the equivalent of a protection order being in place in Belgium.
The matter was then adjourned for further submissions as to the appropriate form of conditions to be imposed. The trial judge’s formal orders were issued on 6 September 2006 and were clarified by further orders made on 29 September 2006. Relevantly, the requirement of the issue of the restraining order was amended to require the Father to provide instead a written undertaking to the Mother not to approach or molest her or the child.
The Mother appealed from this decision to the Full Court principally on the ground that the trial judge’s discretion had miscarried in ordering the child’s return to Belgium notwithstanding the grave risk demonstrated. It was also argued that some of the conditions were inappropriate or impracticable or not stated with sufficient particularity.
On 22 December 2006, the Full Court allowed the Mother’s appeal and set aside the trial judge’s orders and dismissed the central authority’s application for return of the child.
The decision of the Full Court is reported as McDonald & Director General, Department of Community Services (NSW) (2006) FLC 93-297 and much of the foregoing history is taken from that judgment.
In allowing the appeal the Full Court concluded, in essence, that if conditions were to be imposed to alleviate what would otherwise be a grave risk to the child of return, those conditions must be clearly defined and capable of being objectively measured to determine whether or not they have been fulfilled. The Full Court concluded that the orders as formulated by the trial judge did not meet those requirements nor did they succeed in neutralising the risk to the child of return.
The Full Court concluded, in summary, that there were so many difficulties in establishing satisfactory pre-conditions to enable the return of the child that the only proper exercise of discretion open to the trial judge, once the grave risk exception had been established, was to refuse to make an order for return.
At paragraph 31 of the Full Court judgment their Honours (Kay, Warnick and Boland JJ) also noted:
…[the child], then barely six months of age, was removed from Belgium more than 18 months ago. The assumption that her return to Belgium will now best advance her welfare cannot be so readily made.
At paragraph 61 of their judgment, the Full Court concluded:-
61.Notwithstanding what we have said of the conditions as formulated, the trial judge found that conditions of that nature were all necessary in this case. That finding remains undisturbed. However, it seems to us that there are so many difficulties involved in this case in establishing satisfactory preconditions to enable the return of the child to Belgium that the only proper exercise of discretion open to the trial judge, once the grave risk exception had been established, was to refuse to make a return order. Even if we are in error in relation to that conclusion, given the passage of time that has now occurred since the removal of the child in May 2005, we conclude that it could no longer be seen to be an appropriate exercise of discretion to order the return of this child to Belgium, notwithstanding the flagrant disregard for the Father’s rights as custodian of the child in the circumstances under which the mother wrongfully removed the child from Belgium. It of course remains open to the Father to apply to an Australian court for parenting orders which would either see the child residing with him in Belgium or at least creating a regime that would enable the child to have some form of contact with the Father, hopefully with the view of establishing an appropriate parent/child relationship in due course.
(emphasis added)
In the now almost eight years since the Mother and the child came to Australia, including the six years since the decision of the Full Court on 22 December 2006, the Father has had no face to face contact with either the child or the Mother. The Father’s contact with the child (if it can legitimately be so described) has been through the sending of what the Mother alleges to be a total of four letters and a gift. The Mother has, on her case, sent letters and/or gifts annually to the Father on the child’s behalf, as well as her school reports and photographs. Until the current application, no orders have ever been sought from, or made by, any court in relation to communication or the time the Father ought spend with the child.
Whilst the present application is not supported by any affidavit by the Father his translated letters attached to the application assert propositions to the effect that the Mother has acted to limit or prevent his ability to contact the child. On her case, the Mother contends that the Father has always been fully aware of her whereabouts and that of the child and that in truth the Father has displayed little commitment to having a relationship with the child including the lack of provision of any financial support. There is no corroborative evidence of the Father’s broad contention in this respect and the photographs attached to the Applicant’s material corroborated that the Mother sent them voluntarily. There is also a letter from the Mother dated 2009 containing a suggestion to the Father to the effect that more regular communication from him might assist matters. That seems at odds with the Father’s broad contention.
ISSUES
Against the above background, by application in Form 4, filed 13 August 2012, the Secretary of the Attorney-General’s Department, acting as the Commonwealth Central Authority sought final orders expressed to be pursuant to regulation 25 of the Regulations with respect to the child, who is now aged eight years, for the Father’s access.
The Applicant contends that the filing of the application and the orders sought (which will be shortly discussed) reflect the Applicant’s obligation under regulation 24 to establish, organise or secure the effective exercise by the Father of his rights of access to the child.
In summary and paraphrased form, the application seeks final orders that:
a)the Mother arrange for the child to speak to him via Skype for at least 30 minutes each Sunday;
b)the Mother arrange for the child to be available to spend time (not defined or particularised as to the period or periods) with the Father should he come to Australia upon his giving the Mother four weeks notice;
c)the Mother arrange for the child to visit the Father in Belgium for three weeks each year, commencing in 2013, with the costs of such travel to be divided equally;
d)the Mother send to the Father photographs of the child at least every six months;
e)the Mother send to the Father copies of the child’s school results at the end of each school term; and
f)the Mother inform the Father of important medical decisions made regarding the child either before or shortly after such decisions are made.
On the first return date of the application on 17 September 2012 ( at which point the Mother had been served with the application but was yet to file her response to it) I raised with the parties, given the unusual and lengthy historical background outlined above to the matter, and having regard to the court’s power to make orders as expressed in Regulation 25A being preconditioned on the court being satisfied that it is “desirable” to do so (i.e. make orders) whether it would be legitimate for the proceedings to be heard and determined under the Regulations or pursuant to a Part VII application under the Family Law Act 1975 (Cth) (“the Act”). I directed the parties to file submissions in relation to this issue and the law to be applied to the determination of the application and oral submissions were heard on that issue on 26 October 2012. In the meantime the Mother filed her response to the application on 4 October 2012.
That process has resulted in the parties raising competing contentions as to the disposition of this application and the law to be applied to it. In summary, the issues raised include whether the Court can or should: -
a)refuse to exercise jurisdiction on the basis of the Mother’s contentions to the effect that the application does not establish that the Father has relevant rights of access or that any such rights have been breached;
b)alternatively, on the Mother’s contention, refuse to exercise jurisdiction under the Regulations and dismiss or stay the current application to allow the Father to bring an application for parenting orders under Part VII of the Act;
c)on the Applicant’s primary contention, allow the application to proceed and determine it under the Regulations with the child’s best interests or the child’s welfare being a relevant consideration but one subordinate to the purpose and intention of the Convention;
d)on the Applicant’s alternative contention, allow the application to proceed but determine it “under the framework of the Act,” including that the child’s best interests be the paramount consideration. It was clarified in submissions by the Applicant that “under the framework of the Act” meant “under the framework of Part VII.”
The Applicant contended in written and oral submissions by reference to authority that each of (b), (c) and (d) above were at least potentially available but contended for (c) above as the most appropriate approach and (d) in the alternative and submitted that in all the circumstances of this case there were no grounds to accede to the Mother’s contention that the application ought be summarily dismissed.
For her part, the Mother’s form 4A filed 4 October 2012 primarily contended that this application “is an inappropriate forum. The appropriate forum is under Part VII of the Family Law Act 1975 and as such the application should be dismissed.”
Moreover, in written submissions filed 26 October 2012 on behalf of the Mother it is submitted “the Mother accepts that the Father has “rights of access” under the Belgium Civil Code at Article 374” but there are, in summary, challenges to the nature of such rights and whether there has been any breach of such rights “including whether a breach can be asserted given the delay in this matter and the Father’s conduct in the meantime.”
RELEVANT REGULATIONS
The Regulations, including Part 4 containing the relevant Regulations under which applications for access are made, are made pursuant to the regulation-making power in s111B of the Act.
It is to be noted that s111B underwent significant amendment in 2000. Each of subsections (1A) to (1E) were inserted by amendments made in 2000.[2]
[2] Act 143 of 2000.
Relevantly, s111B (1A) which was inserted by the amending act included that the regulations may make provision for a Central Authority “applying on behalf of another person for a parenting order that deals with the person or persons with whom the child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention”.
Subparagraph (1E) which was likewise inserted provides as follows:-
111B(1E) Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of:
(a)whether an order or determination (however described) has been made under a law in force in another convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or
(b)if the child was removed to Australia--when that happened; or
(c)whether the child has been wrongfully removed to, or retained in, Australia.
Relevantly for present purposes it does not seem that regulations have yet been made pursuant to the power in subparagraph (1A)(c) to allow a Central Authority to apply for a “parenting order” on behalf of another person. For reasons further discussed, it cannot be concluded that any of the regulations presently contained in Part 4 of the Regulations are regulations providing such a mechanism.
In the context of this case, subparagraph (1E) of s111B (and the regulations made pursuant to it) has significance in its provision for regulations to be made whether or not an order or determination has been made in another Convention country and regardless, if the child has been removed to Australia, when that happened.
Part 4 of the Regulations containing the provisions with respect to access applications has itself been the subject of significant amendments and that has obvious implications for authorities decided prior to such amendments.
Significant amendments were made to Part 4 in 2004. The Full Court of this Court (Bryant CJ, Coleman and Murphy JJ) recently observed in Director-General, Department of Family and Community Services & Raddison[3] that one effect of the 2004 amendment to regulation 25 (amended by Statutory Rule 2004, no 371) was to overcome the effects of an earlier decision of the Full Court in Police Commissioner of South Australia & Castell (1997) FLC 92-752 which was authority for the proposition that the regulation in its previous form did not confer standing on a Central Authority to apply to the Court where access rights had not been already established in another Convention country by a judicial or administrative decision or agreement having legal effect.
[3] (2012) FLC 93-500.
Regulation 25A now specifically provides in subparagraph (3) that the Court may make an order under the regulation whether an order or determination has been made in another Convention country about rights of access to the child concerned and, if the child was removed to Australia, when that happened. In short, it reflects the language of subparagraph (1E) of s111B referred to above.
The explanatory statement accompanying the 2004 Statutory Rules Amendments confirm the amendment is to provide for the Court to make an order for contact whether or not a contact order has been made in another country. The explanatory statement contains:-
This provision is intended to provide reciprocity under the Convention by ensuring that the benefits provided to Australian parents seeking contact with their children in other Convention countries, are available to foreign parents seeking contact with their children in Australia.
The statement further contains:-
It is intended that in these Regulations an order for contact (however described) means an order providing for contact between a child and another person or persons made pursuant to an application under regulation 25 as distinct from a contact order made under part VII of the Family Law Act 1975.
(emphasis added)
As the Explanatory Statement referred to emphasises, the power to make an order for contact (or access) under the Regulations is separate and distinct from the court’s jurisdiction to make parenting orders under Part VII.
Raddison’s case (supra) sets out in the judgment the relevant regulations in the form as they existed consequent upon the 2004 amendments referred to and I need not restate them here.
Part 4 was again amended as part of the amendments made in 2007 and relevantly the explanatory statement to the Select Legislative Instrument (no 213 of 2007) provides, in relation to the changes to Part 4, that the replacement of Part 4 made by those amendments is a physical rearrangement of the provisions to assist in clarity and readability of the provisions. Specifically in relation to regulation 25 the statement contains:-
Regulation 25 of the Principle Regulations is amended to divide regulation 25 into three new sections, namely request for access, application for access and orders, and redrafting the regulation as regulations 24, 25 and 25A. The amendments rearrange the provisions under regulation 25 to accord with the chronology of a Convention Access Application.
This makes it plain that regulation 25 in its current form could not be construed as a regulation made pursuant to the power in s111B(1A)(c) referred to above.
In their current form the regulations relevantly provide:-
24Request for access to child in Australia
(1) The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if:
(a) it receives a request from a Central Authority on behalf of a person who claims:
(i) to have rights of access to the child under a law in force in a convention country; and
(ii) that those rights have been breached; and
(b) it is satisfied that the request is in accordance with the Convention.
…
25Application for access to child in Australia
(1) The responsible Central Authority may apply to the Court, in accordance with Form 4, for any of the following orders:
(a) an order specifying with whom a child is to spend time or communicate;
(b) an order for the issue of a warrant mentioned in regulation 31;
(c) any other order that the responsible Central Authority considers appropriate to give effect to the Convention.
…
The power to make orders is set out in regulation 25A of the Regulations:
25A Orders
(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under subregulation 25(1):
(a) make an order of a kind mentioned in that regulation; and
(b) make any other order that the court considers to be appropriate to give effect to the Convention; and
(c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
(2) In determining an application made under subregulations 25(1) seeking an order of the kind mentioned in paragraph 25(1)(a), the court must have regard to the matters set out in section 111CW of the Act if the convention country under the laws of which the person mentioned in paragraph 24(1)(a) claims to have access rights to the child is also a Convention country within the meaning of subsection 111CA(1) of the Act.
(3) The court may make an order under subregulation (1) regardless of:
(a) whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or
(b) if the child was removed to Australia – when that happened; or
(c) whether the child has been wrongfully removed to, or retained in, Australia.
RIGHTS OF ACCESS AND BREACH
The written submissions on behalf of the Mother filed 26 October 2012 contain, as earlier noted, the acceptance by her that the Father has rights of access under the Belgium Civil Code at Article 374. The translation of that article is included in the Applicant’s material and the Mother also accepts the correctness of an attached article containing an opinion which states in relation to Belgium law as follows:-
…on the other hand, for the parent who (in the case of parents who do not live together), does not exercise the right of custody his right to personal contact is in the form of a right of access…
On the Applicant’s material it appears that under the Belgium Civil Code as it is interpreted and applied in Belgium law, upon the parties’ separation in Belgium, the Father possessed under Belgium law a right to personal contact in the form of a right of access.
As noted, the Mother’s written submissions accept those contentions albeit that it is then submitted that the Mother “does not accept that those concessions give rise to some automatic right to exercise access”.
It was not in issue in the original proceedings for a return order that the Father possessed rights of custody within the meaning of the Convention under Belgium law and that the Mother’s removal of the child from Belgium in 2005 was in breach of those rights of custody. On the analysis by the Full Court in Raddison’s case (supra) if, as the Applicant’s material confirms, the Father had a right of personal contact in the form of a right of access upon the parties’ separation in Belgium, it would seem to follow that the Father’s right of access in the form of personal contact was likewise breached upon the child’s removal from Belgium to Australia without his knowledge or consent.
Whilst in oral submissions it was asserted by the Applicant that a breach could also be interpreted as being constituted by the Mother’s refusal to continue to send photographs of the child to the Father (following the Father posting photographs previously sent to the Father on a publicly available website) it seems to me unnecessary to determine whether that is or could constitute a breach of the Father’s right of access in circumstances where the original removal of the child from Belgium, albeit now approaching eight years ago, establishes a relevant breach.
Much of the Mother’s material was directed at showing, in relation to the question of rights of access and breach, that the Father has done little or nothing to pursue any extant right of access over the many years that have now elapsed since the child’s removal and indeed he did not take up invitations by the Mother to establish more meaningful way lines of communication with the child.
That may well be so but as already referred to, both subparagraph (1E) of s111B and subparagraph (3) of regulation 25A contain provisions enabling orders to be made regardless of, inter alia, whether an order or determination has been made in another Convention country about rights of access and, if the child has been removed to Australia, when that happened. This is not to say that the effluxion of time is not a relevant consideration as will be discussed.
The above conclusion means that it would not be legitimate to dismiss the application for want of jurisdiction. Clearly, the Court has jurisdiction under s39(5) of the Act to entertain the application by the Central Authority on the basis of regulation 24 which mandates the Central Authority taking action if the relevant conditions within it are met, and regulation 25 which permits an application to the Court.
Once the jurisdiction of a court is regularly invoked “ordinarily” the court has a duty to consider the exercise of the jurisdiction.[4]
[4] See ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [52] and [218].
Further the power for summary dismissal of an application within jurisdiction is to be exercised sparingly and there are limited grounds.[5]
[5] Family Law Rules 2004 (Cth) r10.12; Friar and Friar [2011] FamCAFC 71 at [48] – [53] and Lindon v The Commonwealth (no 2) (1996) 70 ALJR 541; Custodio & Pinto (2006) FLC 93-279 at [6].
PRINCIPLES/APPROACH TO THIS APPLICATION
Regulation 25A provides the source of power for the Court to make orders, upon fulfilment of the condition “if a court is satisfied that it is desirable to do so…”. It does not prescribe the matters to be taken into account or the means by which the condition is fulfilled, beyond the requirement in subparagraph (2).[6]
[6] Which operates in this case as Belgium is a Convention country within the meaning of sub-s 111CA(1) of the Act.
That feature, and decided cases which will shortly be referred to which offer competing conclusions as to the law to be applied or the approach to be taken to access applications under the Convention, gives rise to competing contentions by the parties as to the place of the child’s best interests or her welfare in the approach to be taken or law to be applied, including any role of Part VII of the Act.
The Applicant relies upon the decision of the Full Court in McCall and State Central Authority; Attorney-General of the Commonwealth[7] and the decision of Lindenmayer J in Director-General, Department of Family, Youth and Community Services v Reissner (“Reissner”)[8] for the Applicant’s primary contention that this application falls to be determined pursuant to the regulations with the child’s best interests or welfare being a relevant consideration but not of paramount importance. That is, that the paramountcy principle does not apply.
[7] (1995) 18 Fam LR 307.
[8] (1999) 25 Fam LR 330.
The Respondent Mother primarily relies upon a subsequent series of more recent first instance decisions including State Central Authority v Peddar (2008) 219 FLR 273 (“Peddar”); State Central Authority v Quang (2009) 42 Fam LR 288 (“Quang”) and Director-General, Department of Family and Community Services v Brooks [2012] FamCA 179 (“Brooks”) for the contention that the child’s best interests or welfare is paramount in determining applications for access under the Regulations and for the proposition that Part VII proceedings are required.
Further, on the most recent line of first instance decisions commencing with Peddar (applied in Quang and Brooks) there arises the contention to the effect that not only should the paramountcy principle apply but that the application under the Regulations may be treated as a Part VII parenting orders application. In Peddar Bennett J, having reasoned to the conclusion that the paramountcy principle ought be applied in all access applications under the Regulations further determined at [67]:-
So, for the above reasons, I consider that the present proceedings are proceedings brought under Part VII of the Family Law Act…
The further contention raised by the Applicant with reference to the first instance decisions in Shailer & Shailer [2007] FamCA 1312 (“Shailer”) and Brooks is that a distinction may be drawn between applications for access which seek access to occur only in Australia and those which seek that access occur either partly or exclusively overseas. The Applicant contends that the authorities referred to support the proposition that the Court may decline to exercise jurisdiction under the Regulations in favour of Part VII jurisdiction in the former case but any overseas component dictates the exercise of the jurisdiction under the Regulations. Here, the Applicant contends that because the orders sought include access being exercised in Belgium this dictates the result that jurisdiction under the Regulations ought be exercised rather than declining that jurisdiction in favour of Part VII.
I will first deal with the last of the contentions just mentioned. I do not consider that contention to be legitimate.
In Shailer, Brown J in brief reasons delivered on the hearing date recorded the following:-
23. I note that the order sought here is to “secure effective exercise” which, on its face, would be to secure the rights of access of the Father in the United States. Regulation 23 makes it clear that the right of access is a right of access to a child in a convention country. If one looks at Regulation 10, a convention country is any country other than Australia. Thus, an application to secure the effective exercise of a right of access in that convention country is, in fact, an application to secure access in a country outside Australia. That does not mean, of course, that pursuant to Regulation 24 and 25, an application or request cannot be made for access to a child in Australia. However, the right of access which is to be enforced is a right of access to a child under a law in force in a convention country.
…
30. …Pursuant to the orders sought by the State Central Authority, the child would live in Australia, not in the convention country where the alleged right of access arose. Further, much of the time the Father would spend with her would be in Australia, where the alleged right of access did not arise.
…
32. Having regard to that short exposition of the facts and law; the existing proceedings in Australia between the parties; the fact that the orders sought by the State Central Authority seek more frequent access in Australia than in the United States; and the specific parenting orders that the husband sought in his response to the application under the Family Law Act 1975; I am satisfied that the application brought by the State Central Authority should be stayed, pending the determination of the parenting applications filed by the parents in this jurisdiction, or further order.
Evidently, the issues in that case were complex, not the least because there were simultaneous proceedings under both Part VII and the Regulations for access to the subject child. Furthermore, with the greatest respect to Brown J, it appears that her Honour may have misinterpreted regulations 24 and 25 to refer to the location where the access is to occur, when in fact the accepted and, in my view proper, interpretation of those headings is that they refer to the location of the child to which the requesting person is seeking access. That is to say, the heading, “Request for access to a child in Australia” in regulation 24 refers to a request to spend time with a child who is presently located in Australia at a location anywhere in the world rather than a request to spend time with a child, wherever their residence, at a location in Australia.
Her Honour appears to have inferred that any application made pursuant to the Regulations must be for the parent to spend time with the subject child in the country whose laws establish the relevant right of access. This is clearly not the intention of the Convention or effect of the Regulations.
Brooks does little more on this aspect than to repeat the findings of Brown J and summarises the findings as creating a principle that proceedings ought proceed under the Act rather than the Regulations where the rights of access will result in the child spending time with the requesting person exclusively in Australia. I do not find that any such principle can be legitimately derived from the Regulations. I therefore do not consider the location where access is to occur is determinative of whether or not jurisdiction under Part VII as opposed to that under the Regulations is engaged.
Paramountcy Principle
The submission of the Applicant was that, as this application has been made under the Regulations and not the Act, the paramount consideration ought be the purpose and intention of the Regulations over the welfare of the child although her welfare ought still be given considerable weight. The Applicant primarily relied upon the decision in Reissner in support of this submission.
In Reissner, his Honour Justice Lindenmayer held that:-
53. … Whilst it is true McCall’s case related to an application for return of a child retained in breach of custody rights, the answers which the Full Court provided to the questions which were asked in the special case there, and their reasoning, in my view make it clear that the comments which they made and their answers apply to all applications which are brought under the regulations. And that, of course, includes applications in respect of access.
54. Accordingly, I conclude that the principle of the paramountcy of the best interests of the child, which is enshrined in the Family Law Act, is not a principle which applies to these current proceedings. Of course, it does not follow that the best interests or welfare of the child is not relevant to the determination of the proceedings; indeed, I believe that it is, but it is simply not the case that the child’s best interests are to be regarded by the Court as paramount.
That conclusion appears to have been rejected by the later line of authority referred to, commencing with Peddar, where Bennett J held:-
31. … The provisions in the Regulations which provide for mandatory return and exceptions thereto are provisions which relate to forum. They are not provisions which relate to the long term welfare of children. Therefore the welfare of the children or best interests of the children are not paramount considerations to which a court must have regard in such cases.
32. By contrast, with few exceptions, access cases under the Regulations, arise for consideration in this court after the child has assumed Australia as his/her place of habitual residence. The children concerned are already habitually resident in Australia and are subject to Australian law. In my view, a child in respect of whom the access provisions of the 1980 Convention are appropriately engaged pursuant to the Regulations, should have his or her parenting arrangements determined according to the law which applies to all children in Australia. That is because such children, like F and E, are now habitually resident in Australia.
The view that the paramountcy principle applies to all access applications was repeated by Bennett J in Quang at paragraph [9]. Le Poer Trench J, in Brooks, accepted the conclusions of Bennett J in those two cases at paragraph [52]:-
52. It may be drawn from these authorities that although the paramountcy principle is not to be the primary consideration which the Court must have regard to in matters under the Regulations relating to wrongful removal or retention of a child, in matters under the Regulations relating to access it is open to the Court to apply the principle as the primary consideration. The Regulations offer no restrictions to the considerations which the Court may take into account when making decisions. …
What those cases highlight is that there is a clear distinction between the accepted principles applying to an application for a return order and those applicable to an application for access orders. In the making of a return order, the authorities make it clear that the best interests of the subject child is not the primary consideration in making such an order. That is because a return order is essentially only an order deciding upon the correct forum in which any parenting dispute ought be heard. Following the making of a return order, a court in the Convention country of origin will look at the substantive dispute between the parents on its merits and the implicit assumption made is that it is in the child’s best interests for that resolution to occur in the country of origin.
An application for access orders is a different creature altogether. Once an order of this kind is made, no other court will be tasked with considering the best interests of the child or the substantive disputes between the parties. This is of especial concern in Australia, where a Central Authority can apply to ‘establish’ the effective exercise of rights of access which had never been approved in the form in which they are sought by any court in any jurisdiction as being by reference to the subject child’s best interests. An access order thus has far different consequences to a return order in that it affects the actual substantive rights of the parents and child and not simply the forum in which a dispute about those rights ought be heard.
In De L v Director-General, NSW Department of Community Services[9] the majority of the High Court in referring to the Preamble to the Convention stated:-
The Preamble to the Convention recites the firm conviction of the State parties ‘that the interests of children are of paramount importance in matters relating to their custody’ and their desire (i) ‘to protect children internationally from the harmful effects of their wrongful removal or detention’ and (ii) ‘to establish procedures to ensure their prompt return to their State of habitual residence, as well as to secure protection for rights of access’. The objects of the Convention, as stated in Art 1, are:-
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Thus, it may be said that the Convention is concerned with reserving to the jurisdiction of the habitual residence of the child in a Contracting State the determination of rights of custody and of access.
(emphasis added)
[9] (1996) 187 CLR 640 at p648.
In his separate judgment in that case, Kirby J noted (at p684):-
It is not strictly correct to say that the Convention is an exception to the usual concern of our law for the welfare or best interests of a child or that the Regulations incorporating it into Australian law exclude that consideration entirely, leaving it no part to play in the relevant decisions. What the Convention, reflected by the regulations, has done is to recognise that it is in the best interests of children as a class not to be subjected to the turmoil and emotional divisiveness of international abduction. Wherever this occurs the child involved is ordinarily to be returned to the country in which the child was habitually resident before the abduction. It is in that jurisdiction that contests about custody and access (or their equivalent) are to be litigated.
It is to be noted that Part 3 of the Regulations dealing with applications for return, consistent with the Convention, emphasises the need for priority of determination. Regulation 15(4) reflects the aim that applications for return orders be determined within 42 days from filing. Numerous authorities including that of the High Court in De L (supra) emphasise the need for a speedy determination and a summary nature of determination involved in return order applications. In contrast, no such imperatives are set with respect to applications for access.
As the Preamble to the Convention states, the interests of children are of paramount importance in matters relating to their custody. It is trite that applications for return orders are about forum and the recognition by Contracting States that consistent with best interests of children to negate the potentially harmful effects of wrongful removal is the prioritisation of return orders being made so that courts of the original forum may embark on the investigation and determination of custody issues. Notably even when a return order is made it is not an order to return the child to a parent, but for the child to be returned to a country.
Accepting that best interests lies at the heart of the Convention, clearly when it comes to an application for access, best interests of the subject or individual child, as opposed to children as a group, assumes prominence.
However, whether it is legitimate as a general proposition to conclude that the paramountcy principle applies in all access applications under the Regulations is, to my mind, open to question given the varying circumstances in which such applications may arise.
The language of regulation 24 “establish, organise or secure…” reflects possible permeations in the kinds of applications or backgrounds to them. Regulation 29 (the evidentiary provision) specifically refers to regulation 25 and, for example, enables by sub-paragraph (5) the Court to take judicial notice of a decision of a Convention country.
An application of this type might have a temporal connection with a recent decision of a judicial or administrative authority of a Convention country applying the principle of best interests or the child’s welfare in reaching that decision. Disputed issues of fact going to the heart of best interest considerations may have been resolved in that decision-making process including, for example, by reference to expert evidence.
In those circumstances it may be contrary to, or inconsistent with, the objects and purposes of the Convention, and principles of comity between Contracting States, for a Court here determining an application for access to apply the paramountcy principle as opposed to an approach involving the consideration of best interests as a relevant consideration.
Whilst as already noted, regulation 25A does not prescribe the considerations to be taken into account that does not mean the discretion is completely at large. In referring to the similarly independent discretion under reg 16(3)(c) the majority of the High Court in De L (supra), citing with approval Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning[10] said at p 661:-
As earlier indicated, the so-called ‘paramountcy principle’ is not applicable in proceedings under the regulations. However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has obtained the age and degree of maturity spoken of in reg 16(3)(c), it remains to the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except so far as the subject matter and the scope and purpose of the [regulations]’ enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
[10] (1947) 74 CLR 492 at [505].
In my view the exercise of discretion in a given case, and the place of best interests or the paramountcy principle in the context of relevant considerations is informed by the circumstances of the case. It may be that where an application, as here, is to “establish” the effective exercise of rights of access not derived from any judicial or administrative decision previously made that it will be legitimate to elevate best interests as the paramount consideration.
As Raddison’s case (supra) emphasises, at least since the 2004 amendments, it has not been necessary for a court order to have been made formulating rights of access or relevant rights of access to exist as a precondition to an application under the Regulations. However, the fact that no Court has ever adjudicated upon such rights, and that there is no temporal connection between such an adjudication and the application under the Regulations, are matters plainly relevant to the exercise of discretion or the means by which a court might conclude orders under regulation 25A which are “desirable” and the place of the paramountcy principle in that exercise.
The more vexed question, it seems to me, is the legitimacy of the approach to, uniformly, treat an application under the Regulations as if they are proceedings under Part VII, as seems to be the approach taken in Peddar and Quang, as cited in Brooks, based upon the conclusion that the paramountcy principle ought apply.
No doubt it was this approach of Bennett J in Peddar in treating the application under the Regulations as if it was a proceeding under Part VII which frames in part the alternative contentions of the Applicant and the contentions of the Mother. In this case, however, for reasons which follow I have reservations about the legitimacy of that approach on the bases identified by her Honour.
In my view, the conclusion with which I agree that the paramountcy principle ought be applied in the determination of an access application in these circumstances under the Regulations does not of itself result in the conclusion that the Court is entitled to treat an application made under the Regulations as a proceeding under Part VII.
It seems to me that a range of substantive rights are affected, and a host of procedural and practical difficulties encountered, by treating an application for access under the Regulations as if it were a proceeding “brought under Part VII of the Family Law Act…”.
There is a fundamental difference between the focus of the Convention and Regulations upon “rights of access” that is, the rights of the parent on the one hand and the focus of Part VII of the Act on the other. The focus of Part VII reflected in the objects and principles underlying it as expressed in s60B is upon rights of children, and duties and responsibilities (rather than rights) of parents.
In some applications for access under the Regulations in respect of a child who has become habitually resident in Australia that difference may not loom large. The child’s removal from a parent in the country of origin may be recent or the removal may follow a then recent determination by a Court in the Convention country of origin of “rights of access” considering the child’s best interests or welfare and resolving disputed issues of fact on that central issue.
As earlier noted, s111B(1A)(c) provides a power for regulations to be made allowing a Central Authority “applying on behalf of another person for a parenting order that deals with the person or persons with whom the child is to spend time or communicate…”(i.e. a “parenting order” within the meaning of Part VII) as distinct from subparagraph (1E) of that section under which these relevant regulations are made.
Pursuant to regulation 25 only a Central Authority may apply to the Court for orders. That is, neither parent is entitled to apply for orders pursuant to the subject regulations. Contrast this to Part VII and s65C which prescribes who may apply for a parenting order. It could not be legitimately contended here that the Central Authority is a “person concerned with the care, welfare or development of [the child]” within the meaning of that section.
As the explanatory statements earlier referred make clear if it were not already so, not only does regulation 25 when amended in 2004 make it plain that only a responsible central authority may make an application to the Court for orders under regulation 25 it always remains open for a parent to apply for “contact orders” under Part VII under the Act separate to any application under the Regulations. For example in this respect the explanatory statement to Statutory Rules 2004 No. 371 contains:-
Item 27 remakes regulation 25 to clarify that only a responsible Central Authority may make an application to the court for orders under regulation 25. It remains open to an Article 3 applicant to apply for contact orders under Part VII of the Family Law Act 1975.
Of fundamental importance is that the Central Authority, and not the parent, is the party to the proceedings. That is, in this application the Father is not a party. Only the Central Authority and the Respondent Mother are parties.
The Explanatory Statement to the Statutory Rules 2004 No. 371 amendment contains:-
It is intended that in these Regulations an order for contact (however described) means an order providing for contact between a child and another person or persons made pursuant to an application under regulation 25 as distinct from a contact order made under Part VII of the Family Law Act 1975.
Thus not only is it the case that separate Part VII proceedings could be instituted it would be open to the Father, not content with the outcome of an application determined under the Regulations, to then launch Part VII proceedings seeking orders including orders for time and communication or parenting orders at large.
Plainly enough a Central Authority does not act on the instructions of the parent. Here, the Father does not instruct the Applicant and the statutory powers of the Applicant are framed by the Act and Regulations rather than upon any instructions of the Father.
In my view any role Part VII jurisdiction has to play where an application for access under the Regulations is made rests upon consideration of the nature of federal jurisdiction and the exercise of judicial power, including any potential distinction between “jurisdiction” and “power”.
Recognising that s35 of the Act confers jurisdiction on this Court with respect to “matters” several authorities of the High Court have relevance both as to “matter” and the nature of federal judicial power and its exercise.
In Fencott v Muller[11] the High Court undertook a detailed consideration of the nature of federal jurisdiction and the exercise of judicial power. At p603 the majority judgment contains:-
Though the concept of ‘matter’ may be narrower than that of a ‘legal proceeding’, it is a term of wide import. The word ‘matters’, Griffith CJ said in South of South Australia v State of Victoria (1911) 12 CLR 667 at 675, ‘was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice’. The concept of ‘matter’ as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the court in Phillip Morris.
[11] (1983) 152 CLR 570.
Barwick CJ said: -
It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter…
At p606 the majority observed:-
It follows that the ambit of a matter arising under a federal law may extend beyond claims which arise under that law or which are to be determined by reference to that law alone.
At p608 the majority said:-
…the unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.
…What is and what is not apart of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach to the rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.
…
A judicial power which is not exercised to determine the whole of the controversy is, generally speaking, not appropriately and conveniently exercised. Not appropriately, because the controversy is not quelled; not conveniently, because the parties – the principle beneficiaries of the exercise of judicial power – must litigate anew to have the outstanding questions and issues determined.
In ASIC v Edensor Nominees Pty Ltd (supra) Gleeson CJ, Gaudron and Gummow JJ citing Fencott v Muller at 603-606 said:-
In the proceedings commenced here by ASIC, the federal court was seised of federal jurisdiction by reason of the identity of the moving party and the nature of the relief sought by that party. The ‘matter’ was a justiciable controversy identifiable independently of the proceedings brought for its determination.
That judgment continues:-
The focus of attention is that indicated by the joint judgment of five members of this court in Crouch v Commissioner for Railways (Q), namely ‘upon the substance of the dispute’ and ‘the substantial subject matter of the controversy.’
Whilst the High Court authorities referred to were cases considering federal claims and whether non-federal claims were part of the same controversy the principles are apposite where federal jurisdiction is invoked such as here.
In ASIC v Edensor Nominees Pty Ltd (supra) Gleeson CJ, Gaudron and Gummow JJ noted at p 590:-
‘Jurisdiction’ and ‘power’ are not discrete concepts. The term ‘inherent jurisdiction’ may be used, for example, in relation to the granting of stay abuse of process, to describe what in truth is the power of a court to make orders of a particular description. In Harris v Caladine, Toohey J said:
The distinction between jurisdiction and power is often blurred, particularly in the context of ‘inherent jurisdiction’. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and ‘such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.
Whilst the Applicant on this application is the Central Authority and not the Father the “matter” is not confined to the controversy identified by only the orders sought in the application. Rather, in the particular circumstances of this case as outlined above, the “controversy” is in truth as between the parents of the child of parenting arrangements in her best interests including with respect to the establishment and/or exercise of access rights in favour of the Father.
Inevitably, rights of access or their exercise may be intertwined with rights of custody in many instances such as in this case. In the language of the Convention and the High Court in De L, access being a matter relating to the child’s custody.
As noted, nearly eight years have elapsed since the child became habitually resident in Australia and on the evidence thus far in this application, for whatever reason, the Father has had almost no involvement or communication with the child. The Mother raises issues as to the Father’s commitment.
No court either in Belgium where the child was born or Australia where she has now been habitually resident for many years, has ever adjudicated upon parenting arrangements or “custody” or “access” to use convention language. In the original recovery order proceedings the focus was upon the appropriate forum where the child’s parenting arrangements made in her best interests, might be determined.
Serious issues relating to parenting capacity were raised in the recovery order proceedings. The finding that the child’s removal from Belgium to Australia by the Mother was “wrongful” within the meaning of the Regulations potentially has implications for the Mother’s capacity whilst the conclusion that the grave risk exception was made out (given the nature of the evidence in support of it) potentially has implications for the parenting capacity of the Father. Given the long period that has elapsed since, the conduct of the parents respectively in the period since may likewise have potential consequences to any conclusion about parenting capacity.
Add to that the added layers of complexity which arise in circumstances where it would appear the Father is not conversant in the English language and there is no suggestion that the child is conversant in the Father’s native language.
All of this resonates with the extent of investigation and potential evidence necessary to consider and formulate any orders, whatever be the source of power relied upon, to make orders.
Against that background are the orders sought on this application. They include not only Skype communication on a weekly basis and visits of the Father with the child in Australia but also arrangements for the child to travel to Belgium on an annual basis with all of the costs ramifications of that with orders being sought for the costs to be shared. At her current age of eight years, and perhaps some time to come, those costs might need to include an accompanying adult. In addition there are orders sought in terms of the provision by the Mother of school results and the Mother keeping the Father informed of important medical decisions regarding the child. Arguably orders of that nature are in the nature of parental responsibility or “rights of custody” in the language of the Convention rather than being time and communication or “access” orders simpliciter.
The Mother’s response referring to “inappropriate forum” and the matters raised in her affidavit material and her written submissions (including lack of financial provision by the Father for the child’s benefit) all point to the controversy between the parents going beyond simply formulating orders for access. So too the Father continues to agitate aspects relating to the original removal proceedings.
In all the circumstances of this case it is artificial to conclude that the ambit of the controversy is simply the Father now seeking to exercise access. As but one example, the prospect and potential ramifications of only an order being made which requires the child to travel to Belgium for access, without further determination and orders of her custody arrangements otherwise or the allocation of parental responsibility or authority, only needs be contemplated to reveal that the ambit of the true controversy here goes beyond the orders framed in the application.
The child was brought to Australia by her Mother when she was barely six months of age. She is now eight years of age. She has lived in the primary care of her Mother in Australia for many years with little input from the Father. Australia has now been her country of habitual residence for many years.
Significantly in the original return order proceedings (now years ago) this Court at first instance and in the Full Court affirmed the approach that return of the child to Belgium involved a grave risk of exposing the child to physical or psychological harm or otherwise placed the child in an intolerable situation. The allegations advanced by the Mother in support of the grave risk exception in the return proceedings (albeit now many years ago) have obvious ramifications for matters relating to custody and access (using the language of the Convention) in any determination of orders in that context.
RESOLUTION AND ORDERS
In my judgment the justiciable controversy identifiable in this case attracts the jurisdiction under Part VII of the Act and exercise of the powers under Part VII to make parenting orders is necessary for the resolution of that controversy. This application ought be stayed in favour of an application under Part VII.
In comparison to the Regulations, Part VII provides the statutory means and sources of power by which the whole controversy between the parents, and the person arguably most effected by its outcome, namely the child, would obtain resolution and importantly would remove the risk of this application being litigated to trial only for the outcome to be followed by a Part VII application.
Part VII interim orders can be made to effect a graduated involvement over time of a parent in the Father’s position who, at this point, has had little or no involvement with the child if that be determined to be in her best interests. Whilst I do not suggest that interim orders cannot be made in an application under the Regulations, the rules and the case management procedures of the Court are framed by reference to Part VII rather than the somewhat rare applications of this kind and there would be, in my view, significant procedural advantages in the matter proceeding under Part VII.
As discussed by Bennett J in Peddar, Part VII contains comprehensive provisions including not only extensive sources of power to make orders and a range of mechanisms designed to achieve that, with the best interests of the child being the paramount consideration, parenting orders are ultimately made to achieve that imperative. Allied with this are the Family Rules 2004 apposite to proceedings and orders under Part VII and other provisions of the Act directed to “parenting orders” and the enforcement of parenting orders and the observance of obligations which parenting orders impose.
Whilst by its terms regulation 25A provides power to this Court to make orders not confined to the specific orders sought in an application, including the power to “make any other order that the court considers appropriate to give effect to the Convention” I do not consider that regulation 25A provides a source of power for the allocation of parental responsibility or rights of custody. In this case the application seeks orders including that the child travel out of this jurisdiction to Belgium on an annual basis.
In comparison to the Regulations, Part VII provides, for the reasons outlined, the means by which the whole controversy and the parties to it (i.e. the parents) will obtain resolution and importantly would remove the risk of the parties, having litigated this application to its conclusion, for the outcome to be followed by a Part VII application.
Division 12A within Part VII provides a particular regime for the manner in which child-related proceedings are conducted and includes provisions by which technical evidentiary rules are avoided or minimised.
Given that Belgium is a Convention country within the meaning of s111CW of the Act it is to be noted that whether the Court is hearing proceedings under Part VII or the Regulations the Court must admit into evidence and consider the findings (if any) of a competent authority of a Convention country on the suitability of a parent as a person for the child to spend time with or communicate with. No evidentiary disadvantage is occasioned to the Father in that respect.
The Applicant acknowledges that the Father is able to institute proceedings for parenting orders under Part VII. Moreover the written submissions on behalf of the Applicant properly concede that unlike applications under the Regulations for a return order where cross-examination of witnesses may not occur no such requirement applies in respect of proceedings under the Regulations for access.[12]
[12] Citing MW v Director-General, Department of Community Services (2008) 39 Fam LR 1 at [37] – [40]; and Peddar at [55].
Whilst the Applicant contends that proceeding via the Regulations affords the Father to be represented by a Central Authority and that he would face difficulties of pursuing Part VII proceedings in his own right the fact is the Father has always faced, and continues to face, and would in any event at any time during the currency of an application under the Regulations, face the prospect of a Part VII application being brought by the Mother.
Relevant to the principle of comity between approaches of Contracting States to the Convention and the orders proposed is the Applicant’s contention that having regard to its obligations under the Convention the Applicant had limited scope to decline to bring this application.
As noted above, reg 24(1) states that a Central Authority:
…must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia…
(emphasis added)
The language of that regulation is, evidently, peremptory and leaves little question that a Central Authority acting pursuant to the Regulations must, “…take action…”
However, reg 24(4) of the Regulations states that:
(4) For subregulation (1), the action taken may include any of the following:
(a) transferring the request to a State Central Authority;
(b) applying to a court under regulation 25 for an order that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the request relates;
(c) seeking an amicable resolution in relation to the rights of access to the child.
(emphasis added)
Clearly, not only is the language of reg 24(4) permissive, rather than peremptory, but it is also an inclusive list of the actions that may be taken by an Australian Central Authority, rather than an exclusive list. That leaves other options open.
This is reinforced by reg 25, which is clearly also framed in permissive language:
(1) The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders…
(emphasis added)
I therefore do not accept the submission of the Applicant that it had only limited scope to refuse to bring a properly made request before the Court on behalf of the Father in the form of an application under Part 4. The decision to bring Court proceedings in an access application (as distinct from an application for a return order) is clearly discretionary under the Regulations.
Reinforcing this conclusion is the fact that Australia appears to stand almost alone amongst Contracting States in interpreting the Convention (and the wording to similar effect in the Regulations) to mean that the Central Authority must commence court proceedings upon receipt of any proper request for access orders.
In England, the position has historically been that the obligation placed upon Central Authorities by the Convention is simply to provide a requesting person with a suitable lawyer who can assist that person with pursuing an application for access orders under the domestic law of England.[13] The English Central Authority does not itself institute proceedings on behalf of requesting persons. Although judicial commentary has indicated that this position may be under review,[14] there is no jurisprudence definitively overturning that historical stance. This position of offering procedural assistance (without the Central Authority initiating proceedings itself) for international Applicants to commence access proceedings under the relevant domestic law has also been adopted in jurisdictions such as Austria,[15] Germany,[16] the United States of America[17] and Switzerland.[18]
[13] In re G (A Minor) (Enforcement of Access Abroad) [1993] Fam 216; In re T (Minors)(Hague Convention: Access) [1993] 2 FLR 617.
[14] Hunter v Morrow (Abduction: Rights of Custody) [2005] 2 FLR 1119, [31] (Thorpe LJ); In re D (Abduction: Rights of Custody) [2007] 1 AC 783, [67] (Baroness Hale).
[15] S v S, 25 May 1998, Regional civil Court at Graz.
[16] 2 UF 286/97, Oberlandesgericht Bamberg.
[17] Bromley v Bromley 30 F Supp 2d 857, 860-61 (ED Pa 1998); Teijeiro Fernandez v Yeager 121 F Supp 2d 1118, 1125 (WD Mich 2000); Wiezel v Wiezel Tyrnauer 388 F Supp 2d 206 (SDNY 2005); Cantor v Cohen 442 F 3d 196 (4th Cir 2006).
[18] No c 99 4313, 11 October 1999, Arrondissement judiciaire I Courterlay-Moutier-La Neuveville (Suisse).
Of course, as was noted by his Honour Justice Lindenmayer Reissner at [76], Australia is rather different from many other jurisdictions, including England, in that it has not adopted the Convention word for word as part of municipal law, but has rather implemented the Convention through the differently-worded Regulations. However, reg 5 makes it clear that the Commonwealth Central Authority ought do anything to enable the performance by Australia of its obligations under the Convention. Those obligations are set out in art 7 of the Convention as follows:-
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures –
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
(emphasis added)
It is clear that the Regulations themselves emphasise that although judicial proceedings ought be instituted in cases for a return order, such action ought only be taken, “…in a proper case…” in relation to applications for access orders.
Save for Australia, New Zealand appears to be the only country which also interprets the Convention to mean that a Central Authority ought apply for an access order under the domestic law of New Zealand either in its own name or in the name of the person requesting access.[19]
[19] Gumbrell v Jones [2001] NZFLR 593; it is noted that although this decision refers to the Guardianship Amendment Act 1991 (NZ), which has since been superseded by the Care of Children Act 2004 (NZ), there are no substantive differences between the two Acts in terms of the content of the provisions governing access applications under the Hague Convention.
Although I acknowledge, as was confirmed in Raddison’s case (supra) at paragraphs [44] to [45], that there is no doubt that the Commonwealth Central Authority has the power to bring court proceedings in relation to properly made applications for access orders, that does not automatically result in the conclusion that the Central Authority must do so.
I propose to adjourn this application to a date to be fixed not less than thirty (30) days hence to allow either parent, in light of these reasons and orders, the opportunity of instituting proceedings pursuant to Part VII of the Act so that the proceedings may be regularised in conformity with the jurisdiction to be exercised.
I have already noted s111CW of the Act. In her answer and cross-application filed 4 October 2012 the Mother seeks an order with respect to s111CW. However it seems to me that the power of the Court is to grant an adjournment pending the outcome of a request by a parent to a competent authority of a Convention country, in this case Belgium, for the relevant finding. It seems to me that the document referred which has been served on the Applicant and thereby relayed to the relevant authority in Belgium constitutes a request within the meaning of the section. Having noted that I do not propose to make a specific order but obviously whether these proceedings continued solely via the current application or via Part VII proceedings a useful starting point or a relevant ingredient will be a competent authority in Belgium addressing the matter identified in s111CW and there is nothing to prevent that being advanced now.
I will order that this application be stayed pending the hearing and determination of Part VII proceedings. In the circumstances the usual pre-action procedures to be complied with before filing an application under Part VII ought be dispensed with and I will order to that effect.
No doubt the Central Authority may provide, in discharge of its obligations, assistance to the Father with respect to Part VII proceedings, including their institution, but obviously the Central Authority is not a necessary party to those proceedings.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 January 2013.
Associate:
Date: 22 January 2013
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