FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & PEDDAR | [2008] FamCA 519 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Facilitating rights of access of requesting parent in Sweden to children to Australia pursuant to reg 24 of the Family Law (Child Abduction Convention) Regulations 1986 – relevant principles. |
| Family Law (Child Abduction Convention) Regulations 1986 Family Law Act 1975 (Cth) Family law Reform Act 1995 Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| De L v Director General, NSW Department of Community Services (1996) FLC 92-706 Director General, Department of Families, Youth and Community Care v Reissner (1999) FLC 92-862 State Central Authority and D [2006] Fam CA 1083 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Mr Peddar |
| INDEPENDENT CHILDREN’S LAWYER: | Donald Lampe |
| FILE NUMBER: | MLC | 8853 | of | 2007 |
| DATE DELIVERED: | 30 June 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 22, 23, 24 & 25 October 2007 & 27 November 2007 |
| DATE OF LAST SUBMISSIONS: | 21 January 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms R Stoikovska |
| SOLICITOR FOR THE APPLICANT: | Australian Government Solicitor |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr A Skerlj |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lampe Family Lawyers |
Orders
That all previous parenting orders in respect of the children F born … April, 1997 and E born … April, 1999 (“the children”) be discharged.
That the parents, Mr Peddar (“the father”) and … (“the mother”) have equal shared parental responsibility for the children.
That the children live with the father.
That the children spend time with the mother, in Sweden, as follows:
(a)for up to four weeks in September/October 2008 to include the children’s third term school vacation:
(b)for five weeks during the Australian Christmas school holiday period in each year; and
(c)for four weeks during June and July in 2009 and each year thereafter to include the children’s second term school vacation;
(d)as may be otherwise agreed between the parties and confirmed in writing.
That in the event that the mother travels to Australia, she provide the father with reasonable notice of her intention to do so with a view to the parties making arrangements for the mother to spend time with the boys as may be agreed or, in the absence of agreement, as ordered by the Court.
That the mother book and pay for the children’s unaccompanied return airline tickets for the first occasion of time spent between herself and the boys in Sweden and each alternate period of time spent thereafter.
That the father book and pay for the children’s unaccompanied return airline tickets for the second occasion of time spent between the mother and the boys in Sweden and on each alternate period of time spent thereafter.
That not less than 30 days prior to the commencement of the first period of time to be spent by the boys in Sweden, the mother notify the father in writing of whether the boys will reside at the residence of their maternal grandparents, … and …, during their time in Sweden.
That each parent and/or his or her respective agent, cause the children to be transported to the relevant airport in a timely manner to enable the children to board the scheduled flights.
That no less than one month prior to the time to be spent referred to in paragraph (4) hereof, the parent responsible for the payment of the children’s flights provide to the other parent a detailed itinerary of the flights and a copy of the children’s airline tickets (E-ticket).
That the father be at liberty to accompany the children on the flights to and from Sweden and if he does, the father be responsible for the cost of his own travel. If the father does propose to travel with the children, he immediately provide the mother with notice of his intention to do so.
That the mother be at liberty to accompany the children on the flights to and from Sweden and if she does, the mother be responsible for the cost of her own travel.
That the mother provide to the father a telephone number for the father to have telephone communication during the children’s time in Sweden pursuant to this order.
That notwithstanding any other notice provision in this Order, the mother provide to the father written details of the address or addresses where the children will be residing while in Sweden or spending time with her.
That no less than fourteen days prior to each period of time, the mother provide to the Swedish Central Authority and the father written details of her passport number and driving licence number.
That no less than fourteen days prior to each period of time, the mother write to the children assuring them that she has no intention to retain them in Sweden permanently and that the children will be returned to Australia and the date of their return journey.
That the mother, at her expense, be entitled to communicate by telephone with the children up to twice a week with additional telephone communication permitted on special occasions, including Easter, the children’s birthdays, Mothers’ Day and the mother’s birthday.
That the father, at his expense, have telephone communication with the children twice a week when they are in Sweden spending time with the other with additional telephone communication at Christmas when the children are with the mother pursuant to this Order.
That each parent do all things necessary to facilitate Webcam access between the mother and the children between 4:00 to 5:00 pm. on Sunday of each week (Australian Eastern Standard/Daylight saving time).
That each parent shall refrain from discussing with the children issues which could reflect negatively on the other parent including allegations of sexual abuse, kidnap and/or wrongful retention.
That the father forthwith authorise the principal of M School and each school attended by the children thereafter from time to time to provide to the mother, at her expense (if any) :
(a) copies of each school report in respect of a child;
(b) order forms for photos of the children; and
(c) publications routinely provided to parents.
That notwithstanding the provisions in the preceding paragraph of this Order, the father send the mother at least one school photograph of each child each year.
That not less than fourteen days prior to any change of residential address of the children, the father shall provide the mother with written details of the children’s new address, including any new landline and mobile telephone numbers.
That pursuant to section 65L(1) of the Family Law Act 1975 (“the Act”), compliance with these orders be supervised, as far as practicable, for a period not exceeding two years by a family consultant nominated by the Manager, Child Dispute Services of this Registry of the Court and that such supervision be reportable in the event :
(a) another application is filed pursuant to the Act; and
(b) the judicial officer before whom it is listed requests such a report.
IT IS REQUESTED:
That the independent children’s lawyer meet with the children as soon as practicable and advise them of the nature and effect of the orders made this day.
IT IS FURTHER ORDERED:
That a sealed copy of these orders be provided to the principal at M School and the principal of each other school attended by a child from time to time.
That I reserve liberty to each party and the mother to apply in relation to implementation of this Order and direct that any such application may be returnable before me as soon as practicable.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
If either parent initiates further proceedings in this Court in relation to the children, each party is at liberty to seek to have that application listed for mention before myself for directions if I am reasonably available and to do so by contacting my Associate, with their details.
That all extant applications be otherwise dismissed.
IT IS DIRECTED:
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
IT IS CERTIFIED:
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority and Peddar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8853 of 2007
| State Central Authority |
Applicant
And
| Mr Peddar |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The applicant State Central Authority, acting on the request of the mother (the ‘requesting parent’), seeks orders to facilitate the mother’s rights of access to the children F born in April 1997 and E born in April 1999.
The respondent to the proceedings is the father of the children.
The parents separated in 2003. The children lived in Sweden until they relocated to Australia with their father on 7 February, 2004, pursuant to orders made by the Vastmanlands District Court. The requesting parent, the mother, still resides in Sweden.
It is alleged that the father is in breach of orders made in Sweden in that he has refused to take the children to Sweden to spend time with their mother. In June 2007, the mother came to Australia to enforce the orders and to spend time with the children and, at her own expense, to take the children to Sweden for the period for which access had been ordered. At the time of this trial, the children had not seen their mother since July 2005, when the father had last facilitated access.
As part of the court’s preparation of this matter for trial, Mr Donald Lampe, solicitor, was appointed as the independent children’s lawyer pursuant to s 68L of the FamilyLaw Act, 1975. The role of the independent children’s lawyer is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what he believes to be the boys’ best interests.[1] Mr Lampe is not a legal representative retained by the children and he is not bound by instructions from the boys or either of them.[2] The independent children’s lawyer is required to deal impartially with the parties, to ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters in issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]
i) [1] s 68LA(2) Family Law Act 1975 (Cth).
ii) [2] s 68LA(4) Family Law Act 1975 (Cth).
iii) [3] s 68LA(5)(d) Family Law Act 1975 (Cth).
iv) [4] s 68LA(5)(e) Family Law Act 1975 (Cth).
The relevant rights of access arise under two decisions of Swedish courts, where the children were deemed to have been habitually resident at the time. In February 2004 the Vastmanlands District Court ordered, inter alia, that:-
“[The children] shall every year have the right to access visits with their mother [Ms V] for 5 weeks during the Australian summer holidays which occur between 1 December and 1 February and four weeks during the Swedish summer holiday occurring during the Australian winter holidays which fall sometime at the end of June until the end of July”.
In December, 2004 the Svea Court of Appeal, sitting on appeal from the decision of the Vastmanlands District Court ordered, inter alia, that:-
“access should … take place in Sweden to the extent that has been decided in the District Court”.
It is agreed that it is in the children’s best interests to spend time with their mother. The issue is whether that access should take place in Australia or Sweden. Both parents say that they are impecunious and they are unable to fund travel variously to Sweden or Australia.
Australia and Sweden are both contracting states to the Convention on Civil Aspect of International Child Abduction which was concluded at The Hague on 25 October 1980 (“ the 1980 Convention”). The Convention is given effect in Australia pursuant to Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations). The Regulations make provision for all cases under the 1980 Convention. Wrongful removal and retention cases are dealt with in Parts 2 and 3 of the Regulations and requests to central authorities and court applications for access are dealt with in Part 4 of the Regulations. Of the two, access applications are much less common before our court than are cases involving wrong removal or retention of children. The present application was filed under Part 4 the Regulations on 8 August 2007.
Regulation 24 of the Regulations provides as follows:-
(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.
[…]
(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.
Regulation 25 provides that the applicant State Central Authority may apply to the court for, inter alia, orders specifying with whom a child is to spend time or communicate as well as any other order that it appropriate to give effect to the Convention.
In the present case it is conceded that the children are children to whom the Regulation 24 applies. It follows that it is within my discretion to make any of the following orders:-
a) an order for the boys to spend time or communicate with their mother (Regulation 25A(1)(a));
b) any order which I consider is appropriate to give effect to the Convention (Regulation 25A(1)(b));
c) such order imposing conditions on the boys spending time or communicating with their mother as I am satisfied is appropriate to give effect to the Convention (Regulation 25A(1)(c)).
Article 1 of the Convention describes one of the objects of the Convention as being to ensure that rights of access under the law of one Contracting State are effectively respected in the other Contracting States. The Convention also provides:-
CHAPTER IV--RIGHTS OF ACCESS
Article 21
An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co‑operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
Article 7 of the Convention provides that Central Authorities shall co‑operate with each other and promote co‑operation amongst the competent authorities in their respective States to achieve the other objects of the Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures:-
·to exchange, where desirable, information relating to the social background of children[5];
·to provide information of a general character as to the law of their State in connection with the application of the Convention[6];
·to initiate or facilitate the institution of judicial or administrative proceedings, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access[7];
·where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers[8];
·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[9].
[5] Article 7(d)
[6] Article 7(e)
[7] Article 7(f)
[8] Article 7(g)
[9] Article 7(i)
A significant issue in this case is the basis upon which my discretion to make the above orders is to be exercised. Do I apply the same law to the children as I would to most every other child in Australia or is it, as the State Central Authority contended, a matter where different considerations apply because it is a case brought pursuant to the access provisions of the Family Law (Child Abduction Convention) Regulations 1986? As part of the court’s preparation of the matter for trial, I specified that each party should be in a position to address me on the applicable law. At the trial the applicant was represented by Ms Stoikovska of counsel. Mr Skerlj, of counsel, appeared for the independent children’s lawyer. For the first 3 days of trial, being 22 to 25 October, 2007 inclusive, the respondent father was represented by Forte Family Lawyers. Mr G Atkinson, of counsel, appeared on his behalf. On 26 October, 2007 the matter was adjourned at the request of all parties to permit negotiations to take place with a view to resolving the matter. No resolution eventuated. When the matter was relisted on 28 November, 2007 the respondent father appeared on his own behalf.
On 1 November, 2007 the respondent father’s solicitors had filed a notice of ceasing to act for the father. However, they did not appear on 28 November 2007 and seek to be excused from further attendance. I do not regard that lack of courtesy as something for which the respondent father is responsible. However, the effect of the respondent ceasing to be represented mid way through proceedings is that submissions which were to made on his behalf in relation to the applicable law and the basis upon which I should exercise my discretion under reg25, were virtually non existent.
Terminology
Before going further, I should deal briefly with terminology used by this court in parenting (child related) matters as opposed to the language of the Convention which has been adopted by all party states. I have described the requesting parent’s entitlement to see the boys as “access” or “spending time with”. In the present case, both descriptions are correct. There have been certain amendments to our domestic law since Australia implemented the 1980 Convention. Until 1995, the meaning in the Convention of the term “access” was the same as the meaning of that term in our domestic legislation. On 11 June 1996, the Family Law Reform Act 1995 came into effect and what was previously referred to in our domestic law as “access” became “contact”. More recently, the Family Law Amendment (Shared Parental Responsibility) Act 2006 effected further amendments to our domestic law. Now, all non-financial orders in relation to children are called “parenting orders”. Section 64B(2) of the Act provides that a parenting order may deal with various matters including :-
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or persons;
[…]
(e)the communication a child is to have with another person or other persons.
References to “residence” and “contact” were removed. The term “resides” was replaced by “lives with”. References to a child having “contact” with a person were replaced by the phrases “a child is to spend time with a person” and “the child is to communicate with a person”. Now, access rights under the Regulations equate to an order under the Family Law Act 1975 that a child either spend time with a person or communicate with a person or both. I will use the terms interchangeably. However, when it comes to orders which I might make for the establishment, organisation or to secure the effective exercise of the requesting parent’s ‘rights of access’, my orders will be expressed in terms of time to be spent and communication between the mother and the children, because that is the language of the operative law in Australia.
Just before I leave terminology, it will also become apparent from authorities from which I will quote below that the concept of the “best interest of the child” was, prior to 1995, referred to as the “welfare of the child”. In the context of the 1980 Convention, the term, the “best interests of children” is used interchangeably with “children’s welfare”.
Legal principles
The Regulations are silent on particular matters to be taken into account under reg 25 and reg 25A in the exercise of my discretion to grant the relief sought I required each party to make preliminary submissions about the applicable principles for the exercise of the discretion under the Regulations. The first issue is whether the application falls for determination under usual welfare principles in Part VII of the Family Law Act 1975 or whether different tests and considerations apply because this is an application brought by the applicant in accordance with the Regulations.
The applicant State Central Authority made written submissions about the matters to be considered in the exercise of the discretion. These submissions were filed on 18 October 2007 and 24 December 2007[10].
[10] Submissions on behalf of the State Central Authority, paragraphs 32 to 34 inclusive
The State Central Authority contends that the present proceedings do not fall within the court’s usual jurisdiction in parenting matters and that the best interests of the children are not the paramount consideration. The applicant contends that any implementation of the mother’s access rights must be determined, first and foremost, with regard to the purpose and intention of the 1980 Convention. Further, the applicant State Central Authority submits that whilst the interests of the children are a relevant or not extraneous matter, they are not a matter that should be regarded as paramount.
The State Central Authority seeks to draw an analogy between the discretion which arises in the present case with that which arises in a case of wrongful removal or retention where an exception to mandatory return has been made out. In this respect, counsel for the applicant State Central Authority referred to and relied upon the majority decision of the High Court in De L v Director General, NSW Department of Community Services (1996) FLC 92-706 (‘De L’). In De L, the High Court considered, inter alia, the basis upon which a discretion not to return a child to a convention country ought to be exercised if a court were to be satisfied that the child objected to being returned within the meaning of reg16(3)(c) of the Regulations. The majority, there comprising Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (with whom Kirby J did not disagree on this point) made the following comments (footnotes omitted)[11]:-
Remaining Considerations
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 attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for 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 in 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.
[11] 83,456
Clearly, the non-applicability of the paramountcy or best interest of the child principle to wrongful retention or removal cases under the Regulations is correct. That was the decision of the Full Court of the Family Court in the wrongful removal case of McCall and McCall; State Central Authority: Attorney-General (Intervenor) (1995) FLC 92-551. There, the Full Court set out the nature of the jurisdiction exercised in respect of applications made to it pursuant to the Family Law (Child Abduction Convention) Regulations 1986. McCall’s case involved a child wrongfully removed or retained from the United Kingdom. Specifically, the taking mother, Mrs McCall, put into issue the validity of reg 16(3) in light of the child welfare/best interests provisions in the Act, in particular, the then s64(1)(a) of the Act. Prior to determining the proceedings at first instance, the trial judge stated a case for the opinion of the Full Court which procedure[12] enabled his Honour to refer questions of law to the Full Court without the need for an appeal. In this process, the Full Court decided, inter alia, that reg 16 (3)(a), (b), (c) and (d) were valid regulations. There was also the following question put and response forthcoming from the Full Court:-
6. What is the nature of the jurisdiction exercised by the Family Court of Australia in respect of applications made to it pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth)?.
AnswerThe jurisdiction is jurisdiction derived from, and for the purposes of giving effect to, the Regulations. It does not involve the exercise of the Court's jurisdiction in relation to the custody or guardianship of, access to, or welfare of, a child.
[12] pursuant to Section 94A
I note the question and answer above is not confined to the provisions directly under consideration in McCall’s case (wrongful removal or retention) but could be read to embrace the full scope of the Regulations, that is, the access provisions in Part 4 of the Regulations in addition to the Parts 2 and 3 which dealt with wrongful removals and retentions. However, I do not consider that to be a correct application. The Full Court’s discussion of the jurisdiction of the Family Court under the regulations could, in my view, only have applied to the removal and retention cases, such as the facts were in McCall’s case. If I am wrong and the Full Court’s response (quoted above) was intended to encompass access cases (which I very much doubt), the statement is obiter dicta. No access matter under the Regulations arose or was under consideration in McCalls case. Accordingly, I respectfully distinguish the reasoning of the Full Court in McCall’s case as applicable to wrongful removal and retention cases and not to access cases under the Regulations..
Regulations 25 and 25A provide as follows:-
Application for access to a child in Australia
reg25 (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.
[…]
Orders
reg25A(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 subregulation 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.[13]
(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.
(4) If the responsible Central Authority applies to the court for an order under sub regulation (1), and the order is made, the Commonwealth Central Authority or the State Central Authority is not required to make or pay for the arrangements that are necessary to give effect to the order.
[13] Note that reg 25A(2) has no application to the present case because Sweden is not a Convention country within the meaning of subsection 111CA(1) of the Act as it is not a country for which the Convention in respect of Parental Responsibility and Measures for the Protection of Children has entered into force.
Neither reg 25 nor reg 25A prescribe the matters be taken into account in access cases. In my view, that is because:-
a)reg 25 prescribes what orders the responsible Central Authority may apply for; and
b)reg 25A specifies that the court can make the orders specified in reg 25(1) or any other order that would be appropriate to give effect to the Convention or apply a condition which the court considers appropriate to give effect to the Convention.
The court’s powers to make orders specifying with whom a child is to spend time or communicate does not derive from reg 25. When reg 25A(1)(a) is read together with reg 25(1)(a), those sections describe the orders the court may make, but reg 25A(a) does not set out the basis upon which the discretion to make those orders is to be exercised.
It is significant, in my view, that reg 25(1) and reg 25A(1) describe in separate sub-paragraphs the various orders which may be made on an application brought by the Central Authority. Clearly the court has jurisdiction pursuant to reg 25(1)(b) and (c) to give effect to the operation of the 1980 Convention pursuant to the Regulations. In my view, if it was intended that an order pursuant to which a child is to spend time with a person was to have as its focus the operation or purpose of the 1980 Convention, the Regulations would have been differently worded and would have specified the paramountcy or significance to be accorded to the effect and objects of the Convention
There is good reason why reg 25 provides that the responsible Central Authority may make certain applications. Absent any consideration of the Regulations, standing to make an application for a child to spend time or communicate with a person is provided for in Section 65C of the Act which provides as follows:-
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Regulation 25(1)(a) empowers the Central Authority to make an application without having to prove that it is a “person concerned”. In that respect it is directed to, and fulfils, the purpose of the Convention which, in relation to access matters, is for steps to be taken for the benefit of a requesting parent who is outside Australia and who may not necessarily be able or intending to enter Australia. In particular, it empowers the Central Authority to institute and prosecute proceedings under Part VII at the request of the parent who is in another country without the requesting parent necessarily having to come to Australia to start or to continue proceedings. This representative mechanism is otherwise lacking in our legislation.
I am mindful of the distinction between access cases and cases of wrongful removal or retention. Under the 1980 Convention children in respect of whom the wrongful removal or retention provisions of the Regulations are appropriately engaged are, subject to a few exceptions, to be returned to their country of origin so that proceedings about them can be determined in the country in which they were habitually resident immediately prior to the retention or removal. In other words, wrongful removal or retention cases, the Convention and recognises the country in which the child was last habitually resident as being the most appropriate forum for determination of disputes about the child. As the Full Court in McCall’s case quoted with apparent approval:-
In the New Zealand case of Adams and Wigfield [1994] NZFLR 132, […] Hammond J went on to say, at 139:
'This of course suggests (in my view rightly) that the philosophy behind the 1991 Amendment is that section 12 applications are not concerned with the disposition of custody cases on the merits; they are really a modern set of conflicts of laws provisions coupled with the statutory mechanisms to give effect to those rules.'
I respectfully agree. 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.
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.
Relevantly, for the present case is the following description of the purpose of the Regulations as a whole which specifies, inter alia that the Regulations are intended to be construed:-
recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence[14].
[14] reg 1A(2)(a)
It appears that the contention is shared by the Swedish authorities. In the present case, the State Central Authority relied on a legal opinion by one Ms Ekberg-Carlsson[15] which commences ‘As requested by the Central Authority of Australia, I hereby make the following statement concerning Swedish law’. She provides an analysis of the status of a bond, were this court to decide to order the mother to pay a bond before having access to the children. Ms Ekberg-Carlsson also makes reference to the potential for ‘mirror orders’ to be made in Sweden and opines:
Swedish courts do not have jurisdiction/forum in questions concerning the children [F and E], since they do not have their habitual residence in Sweden.
According to both international law and Swedish law all questions concerning the children such as custody, access etc, have to be dealt with in the country where the children live.
If we would send the Australian orders to a Swedish court and request that mirror orders would be obtained in Sweden, the court would reject the application on the ground that the court does not have jurisdiction/forum.
The Australian orders are however binding between the parties.
[15] Affidavit of 19 October, 2007 a statement of Ms Suzzanne Ekberg-Carlsson, attorney at law, Stockholm
In the present proceedings, I have admitted into evidence and will consider the findings (if any) of the competent Swedish authorities. This is pursuant to s 111CW which provides as follows:
Court proceedings dealing with whom a child spends time with
(1)A court hearing proceedings under Part VII (Children) or regulations made for the purposes of section 111B dealing with:
(a) whom a child is to spend time with ; or
(b) whom a child is to communicate with;
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 - disp4#disp4 or communicate with.
In Australian family law, in the determination of parenting matters including orders that the child should spend time or communicate with someone, a child’s best interests are a paramount consideration. In my view, to regard E and F’s best interests as anything other than the paramount consideration would be to make them subject to laws which are different from the law applicable to all other children who are habitually resident in Australia.
Just as decisions in cases of wrongful removal and retention are based on the acceptance that the child’s country of habitual residence is best forum for a determination of the future care arrangements for children wrongfully removed or retained across international borders, the law pursuant to which E and F may be required spend time and communicate with their mother, must be the law of the country in which they habitually reside, Australia. On my reading, the Regulations do not provide for anything else.
Returning, however, to the contentions of the applicant State Central Authority as to the scope of the discretion to be exercised, it was submitted that the decision of Lindenmayer J in Director General, Department of Families, Youth and Community Care v Reissner[16] is a persuasive guide to the parameters of the exercise of the discretion available to the court in access cases.
[16] (1999) FLC 92-862
In Reissner’s case Lindenmayer J considered an access application brought at the request of a paternal grandmother in Arizona in the United States of America seeking to spend time with her grandson in the United States after the father had removed the child to Australia without her knowledge and in the face of an order in Arizona that the child spend regular time with her. In discussing the relevance of the welfare of the child on the exercise of his discretion to order that access take place, it is clear that his Honour viewed the welfare of the child as subordinate to the purposes and intention of the Convention. His Honour’s discussion included:-
THE LAW
51. The proceedings are brought pursuant to Regulation 25 of the Family Law (Child Abduction Convention) Regulations, which I shall refer to hereafter simply as “the Regulations”, to the relevant terms of which I shall refer in due course. Before doing so it is convenient to state some general principles which I adopt, with respect, from pages 5 to 7 of the excellent written outline presented by Mr Green of counsel, who represented the Central Authority in these proceedings.
[…]
(3) The purpose of the Regulations is to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction - see s. 111B of the Family Law Act 1975, and reg. 22 of the Regulations.
(4) An object of the Hague Convention is to ensure the rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States - see reg.22 of the Regulations, s. 111B of the Family Law Act, Article 1(b) of the Convention, which is itself contained in schedule 2 to the Regulations.
(5) The principle of the best interests of the child as the paramount consideration does not apply in considering applications under the Regulations, at least, when the proceedings are for the return of a child wrongfully removed or retained in breach of rights of custody - see McCall previously referred to.
52. The father, through the written outline of his solicitors which was filed on his behalf and relied on by him for the purpose of these proceedings, really asserts otherwise in respect of access rights and, in broad terms, the submission for the father was that when it comes to the question of access rights, the best interests of the child remain the paramount consideration.
53. I do not accept that submission. 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 the 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 bests interests are to be regarded by the Court as paramount.
And later Lindenmayer J said:-
86. In summary, it seems to me that whilst I have a discretion to exercise under reg. 24(5), I should pay proper regard to the purpose and intention of the Convention, and in fact that is perhaps the most significant matter to be taken into account in the exercise of that discretion. I should also, of course, have regard to practicalities. I should have regard to the welfare of the child, without making it the paramount consideration. And I should have regard to the relative recency and the circumstances of the making of the orders in the Superior Court of Arizona which defined the rights of access of the maternal grandmother, the breach of which has led to these proceedings.
With respect, I cannot agree that the purpose of the 1980 Convention is the most significant matter to take into account in access cases such as the present proceedings. To do so would be to have the purpose of the Convention displace the best interest of the children as the paramount consideration which, in my view, is impermissible.
Whilst not directly relevant to the present case but I should mention here that the decision of Lindenmayer J in DG and Reissner was made under the provisions of reg25 as it was then in force and which provided that a central authority could apply for an order “that is necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia”. Under the previous regulations, the role of the central authority was to facilitate the implementation of existing access rights. It did not extend to initiating proceedings to establish access rights. It is clear from his Honour’s reasons that he was of the view that reg 25 (as it then stood) pertained only to rights of access which were pre-existing and did not extend to a situation where the central authority could apply to establish a right of access. In the present case the access rights are pre-existing. However, His Honour’s discussion on the issue of implementation rather than establishment of rights of access leads into a further discussion about the extent of the then reg 25 and how it should be construed. It is a discourse upon which the applicant State Central Authority in this case relies. Lindenmayer J said:-
61. In the case of Police Commissioner of South Australia v Castell (1997) FLC 92 752, the Full Court, of which I was a member, held at page 84, 140 as follows:
“In our view, the rights of access referred to in the Regulation are rights already established in another Convention country either by operation of law, or as a consequence of a judicial or administrative decision, or by reason of an appropriate agreement having legal effect (cf, for example, ss 63E and 63F(3) of the Family Law Act). Such an interpretation is, in our view, consistent with the provisions of Article 4 of the Convention that the Convention shall apply to any child who is habitually resident in a Contracting State immediately before any breach of custody or access rights.”
62. Later on in the same judgment we said this:
“We thus consider it appropriate in construing reg 25 to regard it as confined to cases which give effect to the relevant purpose of the Convention, namely to ensure that foreign access rights are respected.”
[….]
70. The ultimate and really significant question in this case is the power of this Court, in dealing with the proceedings, and the form of the order which it should make.
71. It is clear from the wording of reg. 25(4) that the Court has a discretion to exercise in the matter. It is not a matter of simply “mirror imaging” or taking appropriate steps to enforce the orders made in the American Court. However, as I have already indicated, a significant aspect of the Court's discretionary exercise is the requirement of Regulation 25(4) that the order be one which the Court considers appropriate to give effect to the Convention.
72. As I have already said, the aims of the Convention are, amongst other things, to ensure that access rights created in one Contracting State are respected in another Contracting State to the extent that that is possible. In the United Kingdom there has been an approach adopted by the Courts to the matter of enforcement of access rights which, in my view, is not in accord with the Regulations as they apply in Australia, nor is it a course which should be followed in this country. In that case, Re G, a Minor, (Hague Convention Access) (1993) 1 FLR 669, the Court of Appeal considered the operation of the access provisions of the Convention in the United Kingdom.
73. In the United Kingdom, of course, the provisions of the Convention have been effectively adopted into the law of the United Kingdom directly, rather than, as in Australia, through the enactment of Regulations. In that case, the father and mother of the child had lived in Ontario in Canada. Following certain allegations of violence, the mother left Canada for the United Kingdom, but was ordered to return to Canada following a successful application for return under the Convention on behalf of the father.
74. Upon her return to Canada, an Ontario Court made a consent order allowing the mother the option of living in either Ontario or England, and made detailed access arrangements for the child to have contact with her father in Ontario. The mother then returned to the United Kingdom with the child, as she was entitled to do. When the father sought to exercise his rights of access, the mother refused. The father then applied under the Convention for access orders.
75. At first instance, the Court ordered that access take place in the United Kingdom, and found that in considering the access provisions in the Convention, the Court must have regard to the welfare of the child. The father then appealed to the Court of Appeal, asking that the access take place in Canada. The first issue was whether the Convention applied to the case at all. All members of the Court of Appeal agreed that the Convention did apply, but found that Article 21 of the Convention only applied at an administrative level, requiring the Central Authority of the country receiving the application to make appropriate arrangements for the requesting applicant to be legally represented and arrange Legal Aid for the father to make an application under the United Kingdom Domestic Law, namely, the Children Act 1989. Once arrangements had been made by the Central Authority for the father to be represented and Legal Aid provided, Butler-Sloss LJ stated that this effectively exhausted the direct applicability of the Convention. The Court then held that the application by the father should properly be brought under the Children Act, and, as such, was governed by the principle that the welfare of the child was paramount.
76. As I have said, that approach differs from the approach which is appropriate in Australia, given that the Convention has been adopted here in a different way, and the words of the provisions of the Convention itself, in my view, also support the different approach which I regard as being more appropriate here.
77. However, some of the statements made by Butler-Sloss LJ in that case are of some relevance and assistance in this case in considering how the Court should exercise the discretion which it clearly has under reg. 25(4). In that case, amongst other things, her Honour said this at p.676:
“The existence of an order of the court where the child was then habitually residing is, however, of crucial importance and is a factor to be given the greatest possible weight consistent with the overriding consideration that the welfare is paramount.”
78. Her Honour then said that she agreed with a statement by Eastham J in Re C (1991) (an unreported case) which was in these terms:
“In considering whether or not it is in the best interests of the child for the order to be implemented, the court must pay regard to the decision of the foreign court. It must pay regard to how recently the court has seen fit to make the order, and it must bear in mind that, having regard to the doctrine of comity of nations, unless it is clear the enforcement of the order is contrary to the welfare of the child, which is the paramount consideration, that the court should respect the order of the court in the requesting jurisdiction.”
79. As I say, it seems to me that those statements of principle by that Court are relevant to the exercise of the discretion in this case, even though in this jurisdiction the Court does not approach the proceedings in the same way by regarding itself as bound by the best interests principle in these proceedings.
In Re G[17] Lord Justice Butler-Sloss had observed that, in the early 1990’s, there had been a number of access applications brought in the United Kingdom under the 1980 Convention which had been resolved consensually. The decision of Eastman J in Re C (Minors)(Enforcing Foreign Access Order) [1993] 1 FCR 770 was the only judicial determination to which she referred. After the quote which is extracted above, Butler-Sloss LJ continued:-
I agree, therefore, that Article 21 applies to this appeal. It is not entirely easy with the paucity of information about the actual working of Article 21 to be clear how it is to be effective. The approach of the Convention to rights of access is undoubtedly more flexible than the approach to wrongful removal or retention (compare Article 21 and Article 12).
Dr John Eekelaar in his Explanatory Documentation prepared for the Commonwealth Jurisdictions in February 1981 commented on Article 21 in para 2.6. He explained that Article 21 allowed a party resident outside the Contracting State to present to that State's Central Authority an application for making arrangements for organizing or securing the effective exercise of rights of access. Central Authorities are not placed under mandatory duties with respect to such applications other than generally to promote co-operation on these questions, and he went on to say that in practice this can be achieved by passing the matter on to a local lawyer. The lawyer may either negotiate agreement between the parties or institute whatever proceedings may be necessary in the local court on behalf of the party living abroad. An article by AE Anton in the International and Comparative Law Quarterly Vol 30 (1981) gives some support to the view of Dr Eekelaar. Mr Anton said that it was obviously uncertain what impact these provisions were likely to have but that Article 21 could be seen as promoting a useful degree of co-operation between the Contracting States in the resolution of international problems of custody and access which may not be connected with child abduction.
This approach of Dr Eekelaar, with which I entirely agree, draws the distinction between the duties of the Central Authority and the jurisdiction of the court. Article 21 applies at the administrative level to bring the application to the attention of the Central Authority of the Contracting State. On receiving an application the Central Authority, the Lord Chancellor's Department, complies with its obligation under Article 21 by making appropriate arrangements for the applicant and, in this case, by providing for legal aid and instructing English lawyers to act on behalf of the applicant. This in effect exhausts the direct applicability of the Convention. There is no provision in the Child Abduction and Custody Act 1985, which made the Convention part of English law, for enforcing any failure by the Lord Chancellor's Department to carry out its obligations under the Convention. The only remedy of a dissatisfied parent would be to apply for judicial review.
In a case where the child is habitually resident in the Contracting State, being England, before the breach, the Convention does not directly affect the jurisdiction of the English court. The appellant father's lawyers applied to the High Court but were in error in requiring an order to enforce compliance with the Convention. There are no teeth to be found in Article 21 and its provisions have no part to play in the decision to be made by the Judge. The lawyers should have applied on his behalf for a section 8 order under the Children Act 1989 which is the appropriate way to secure the effective exercise of rights of access.
[17] [1993] 2 FCR 485 at 491 to 492
As will become apparent, I respectfully agree with the analysis of Lord Justice Butler-Sloss.
The last authority relied upon by the applicant State Central Authority was the decision in State Central Authority and D[18] delivered by the Honourable Justice Watt in Melbourne on 8 March 2006.
[18] [2006] Fam CA 1083
State Central Authority and D involved an application brought under the Regulations about the access rights of a South African parent whose three children resided with their mother in Australia. The access rights arose under an order made in South Africa in August 2004 which entitled the mother to relocate the children to Australia and provided that they visit their father in South Africa twice a year. The children had not seen the father since leaving South Africa. The mother sought that the effect of the South African orders be varied so that access between the father and the children take place, at least initially, in Australia. In support of this application she relied on the fact that she and the children were concerned that the father would not return the children after the access period. There was corroboration for this belief in an assessment of the family by Mr P, psychologist. His Honour accepted that, if the husband did fail to return the children, there was a real impediment to the mother entering South Africa to retrieve them. On the other hand, his Honour accepted that the father had certain medical conditions and a fear of flying which precluded him from seeking to exercise his rights more promptly than he did and from travelling to Australia in any event. The relevant parts of Watt J’s analysis is as follows:-
10. The mother urged upon me that I had a discretion to make orders that were different from the orders made in South Africa, for example orders that would require the father to come to Australia for his contact, whereas the Central Authority urged upon me that the only discretion remaining was to make orders for the purpose of giving effect to the orders already made in South Africa.
11. It appears to me that in cases where the State Central Authority is applying for an order that gives effect to a right of access, for example rights that are established in a general sense by legislation, but have not been formulated into an order specifying the form and frequency that access is to take by a court in the relevant Convention country, the orders made in Australia will have to be guided by the local legislative guidelines for giving effect to the best interests principle, and the Convention does not contain or impose an alternative to the application of that principle in the determination of such a case.
12. Here, however, there are orders already in place and in my view, there is limited scope for reshaping or restructuring those orders in an application the purpose of which is to give effect to them. That said, the best interests principle must, in my view, guide the framing of orders to give effect to the rights of access established under those orders.
[…]
14. There is therefore in my view some scope for further or additional orders to be made in proceedings such as this if they are found on good grounds and clear evidence to be appropriate in order to give effect to the rights of access that have been conferred on a parent by an order made in a Convention country.
In State Central Authority and D Watt J imposed a precondition to access taking place in South Africa in July 2006 which was that the father write to each of the children assuring them of his intention to return them to their mother in Australia at the conclusion of each period of access and to do so within 28 days. It appears that Watt J was comfortable with the application of the best interests’ principle where there are no orders yet in place. However, where orders are in place, such as in the present case, then Watt J appears to have found that the application of the best interests’ principle can extends only to the formulation of conditions or other orders which will have the effect of implementing the original orders. Therefore, if I were to apply His Honour’s reasoning in State Central Authority and D to the present case, I would be confined to making orders which supported and facilitated the children spending time with the mother in Sweden and it would not be open to me, under the Regulations, to make orders which facilitate the requesting parent’s access rights being exercised under other conditions such as in Australia.
The submissions for the applicant State Central Authority concluded with the following[19]:-
o This is not an application relating to the child’s care, welfare and development – in such a case Part VII of the FLA would apply. Does it apply here?
It is submitted, the Court is left with a general discretion. It may look to the local law as a guide to determining “the interests of children”. It is not bound to take into account, and slavishly follow (sic) the provision of Section 60CC of the FLA; but it may do so. As Regulation 6(2) states:-
“These regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any law in force in Australia for the return of a child.”
[19] Submissions on behalf of the State Central Authroity dated 19 December 2007 and filed on 24 December 2007, page 18
I cannot see how reg 6(2) is apposite in the present case. That provision is directed to children who are wrongfully removed to or retained in Australia.
With respect, I decline to follow the earlier Australian first instance decisions relied upon by the applicant State Central Authority, being Director General, Department of Families, Youth and Community Care v Reissner[20] and State Central Authority and D[21], insofar as those decisions stand for the proposition that the best interests of the subject children is not the paramount consideration in the exercise of my discretion to make orders in the present proceedings.
[20] 1999 FamCA 1238, (1999) FLC 92-862
[21] [2006] Fam CA 1083
I consider that the United Kingdom approach is the correct approach to take in the determination of the present proceedings. I agree with the comments of Butler-Sloss LJ quoted above that:
“The existence of an order of the court where the child was then habitually residing is, however, of crucial importance and is a factor to be given the greatest possible weight consistent with the overriding consideration that the welfare is paramount.”
I adopt as accurate the summary by Lindenmayer J of the approach taken in the United Kingdom (extracted at paragraph 42 above). That is, once the central authority fulfils its administrative function of bringing a matter before the Court, the matter falls to be determined according to the legal principles applicable to all other children under the jurisdiction of the Family Law Act. That is not to say that the existence and recency of an access order from overseas is not relevant or that one can ignore the international nature of the case and the purpose of the 1980 Convention. However, there is more than sufficient capacity in the matters which must be considered according to our domestic law to examine closely and give significant weight to those aspects of the case.
Before examining the facts and applying the law in the present case, I should complete by summarising my reasoning for departing from the earlier first instance decisions which appear to have elevated the purposes of the 1980 Convention over the best interest principle in a determination of access cases under the Regulations.
I take into account the nature of these proceedings. As I have said above, access applications under the 1980 Convention are different from proceedings in which it is alleged that a child has been wrongfully removed to or retained in Australia. The best interest principle is not applicable to wrongful retention or removal proceedings under the Regulations (in the absence of an exception being made out) because, essentially, those proceedings are proceedings in relation to forum. Forum proceedings do not finally determine the substantive rights and responsibilities of either parent, nor to they define the rights of the children.
On the other hand, in access cases like the present case, orders for the effective exercise of access rights are orders which are likely to affect and define the substantive rights of the children and the rights and responsibilities of the parents or persons concerned. Accordingly, determination of an application for a child to spend time with a person cannot be determined in the streamlined and expeditious manner in which the court can, and should, dispose of a case where the subject child is not appropriately brought into or retained in the jurisdiction in the first place.
The next consideration for me is that Australia has a detailed, if not somewhat complex, legislative framework for the determination of disputes in parenting (access) matters. The legislation confers jurisdiction on this court to make parenting orders in relation to children who, at the time the application is filed, are in Australia or who are citizens or residents of Australia or whose parent is in or similarly connected with Australia or where a party to the proceedings is in or similarly connected with Australia[22]. I am satisfied that F and E are children in respect of whom the Act confers jurisdiction to make parenting orders. Australia is incontrovertibly the place in which they are habitually resident.
[22] Section 69E FLA
The orders which the court is empowered to make under reg 25A include orders specifying with whom a child is to spend time or communicate with, reflects the terminology of parenting orders found in Part VII of the Family Law Act 1975. If the legislature had intended to have access matters under the regulations be determined by the court having regard to considerations other than those which apply to all other children in Australia who are the subject of parenting proceedings, it could have specified it. So, absent clear provision in our legislation or the Regulations that the law to be applied in these cases is something other than the usual law to be applied to parenting disputes in Australia, Australian law ought to apply.
Of course, there are exceptions to the applicability of the best interests’ principle to children who are in Australia. One exception relates to children in respect of whom orders have been made under state based welfare law for the protection of children. Another is children to whom The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children which was concluded at the Hague on 19 October 1996 applies. That Convention entered into force for Australia on 1 August 2003, it is commonly called the Hague Child Protection Convention.
The Hague Child Protection Convention was incorporated into Australian law by legislative provisions in our Act as well as the Family Law (Child Protection Convention) Regulations 2003. Section 111CB of the Act provides that the provisions in relation to international protection of children[23] have effect “despite the rest of the Act” save for in relation to children affected by orders made under our child welfare/protection laws and the Regulations made in respect of the 1980 Convention. Relevantly, there are other sections that preclude an Australian court from exercising its jurisdiction under Part VII of the Act (which is the source of the best interest principle) in situations where it could normally do so and save for certain exceptional circumstances such as urgency.
[23] Part XII (Enforcement of Decrees) Division 4
At the moment, the Hague Child Protection Convention is only in force as between Australia and 12 other countries[24]. Sweden is not one of those countries. However, if the Hague Child Protection Convention was in force between Australia and Sweden, the orders of the Swedish courts of which the requesting parent has the benefit in the present case, may well fall within the relevant definition of a “foreign personal protection measure” and be enforceable in Australia as if they were orders which had been made in Australia as parenting orders under Part VII of the Family Law Act. That is not the situation in the present case.
[24] Czech Republic, Slovakia, Morocco, Monaco, Estonia and Ecuador
A further instance of the best interest principle not being immediately applicable is found in the scheme for registration of overseas child orders under Sections 70G, 70H, 70J and 70K of the Act. Those provisions and regulations made pursuant to them provide for overseas orders about children which are registered to have the same effect as orders which are made under our domestic legislation. The effect of the legislation is that a registered overseas child order prevails and a court should decline to exercise any domestic jurisdiction unless there are substantial grounds for believing that a child’s welfare is likely to be adversely affected by not making another order or, there has been such a change in the child’s circumstances since the overseas order was made that the order ought to be made. The prescribed overseas jurisdictions which are the countries (or parts of countries) to whom these registration provisions apply are set out in Schedule 1A to the Family Law Regulations 1984[25]. Sweden is not a prescribed overseas jurisdiction for these purposes.
[25] Regulation 14 of the FLR 1984
The above instances demonstrate that where the legislature intends to postpone the immediate application of the best interests principle or to make it wholly inapplicable, the legislation specifies that is so.
Moving to another relevant consideration, insofar as reg 25A provides that the court can make “any other order that the court considers appropriate to give effect to the Convention”, regard must be had to the stated objects and expectations of the Convention. These include:-
i)The objective “to ensure that rights of […] access under the law of one Contracting State are effectively respected in the Other Contracting States”[26];
ii)The direction to Central Authorities “to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining […] and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access”[27];.
[26] Article 1 subparagraph (a)
[27] Article 7 subparagraph (f)
The securing of rights of access is made subject to a number of qualifications of which the greatest qualification is that the access rights are to be “respected” in contradistinction to being implemented or enforced. Reference to arrangements for organising and securing the effective exercise of rights of access “in a proper case” also leads me to infer that not every application is necessarily a “proper case”.
Furthermore, the qualified expressions and reference to facilitation used when referring to the support of rights of access under the Convention is markedly different to the mandatory provisions for the support of rights of custody in the face or a wrongful removal or retention.
The applicant State Central Authority relied upon comments of the High Court in De L as applicable to the present case or, indeed, to access cases under the 1980 Convention generally. In De L, the majority of the High Court were satisfied that an exception to mandatory return had been made out and were considering the exercise of the discretion which arose to refuse the summary return of the children to America. The matters to be taken into account in the exercise of that particular discretion are not defined in the Regulations or in the Convention. However as with McCall’s case, De L was in relation to a wrongful removal case and it was not an access case. Necessarily, the issue under consideration was one of forum and jurisdiction between contracting states. It was not the substantive issue of the parent with whom a child should live or spend time. Their Honours’ comments in relation to the breadth of a discretion in relation to issues of jurisdiction between contracting states should not, in my view, be read as applicable to the discretion to be exercised in the final determination of substantive rights of access under the Regulations, namely what (if any) orders should be made for F and E to spend time and communicate with the requesting parent.
So, for the above reasons, I consider that the present proceedings are proceedings brought under Part VII of the Family Law Act. The proceedings are able to be initiated by the applicant State Central Authority because of the provisions of the Regulations which implement the 1980 Convention. I will determine the present case aided with such of the procedural advantages in the Regulations as have relevance to this case. These include requiring an assessment and report by a family consultant[28] and the evidentiary provisions in Regulation 29 and as discussed above, the provisions of s111CW.
[28] Regulation 26
Relevant History
The requesting parent (“the mother”) was born in Sweden in March 1964. She is 43 years of age. She is a student and there is no evidence before me that she is otherwise than of very modest financial means.
The respondent (“the father”) was 40 years old at the time of the hearing having been born in Australia in April 1967. At the time of the hearing, he was a sales representative earning $20,000 per annum and working approximately 20 hours per week. The respondent has repartnered with Ms S. She earns $36,000 per annum and has week about care of her children, a son who is 13 years of age and a daughter, who is 10 years of age.
The parents married in September 1993. F was born in April, 1997 and E was born in April 1999. Both of the children were born in Sweden and lived there until February 2004. The parents separated whilst holidaying from Sweden, in Australia, on 28 November, 2002. The circumstances surrounding the separation are contested but both parties depose to considerable conflict and anguish. The family returned to Sweden on 31 December, 2002.
The mother was the children’s primary carer prior to separation. The father’s employment in Sweden required a deal of travel and the mother reports periods of time when she was sole carer. This evidence is contested by the father. He contends that the quality of the mother’s care of the children was of a poor standard; that the children were often hungry and the home was unkempt when he arrived back from his travels. I need make no findings in relation to this period save for the fact that the children habitually lived in Sweden at the time and had a day to day relationship with both of their parents prior to the separation and relocation to Australia.
On 7 January 2003 the husband filed for a divorce in the Swedish courts. That divorce application was granted in September 2003. Contemporaneously, the mother made a report to the Swedish police alleging that the father’s brother in law had sexually molested the children while the children had been staying in Adelaide.
Much of what occurred at this time is recorded in detail in the Swedish District Court judgment of 6 February, 2004 to which it is proper for me to have regard[29]. I will not repeat it chapter and verse. Suffice to say for these purposes, there were allegations and counter allegations. The parents’ conflict was bitter. The children were spared very little of it. The children’s interests were subordinated to a struggle over the interpretation of events. The children were assessed by multiple welfare agencies, police and specialist investigators.
[29] reg 29(4)
The sexual abuse allegations alleged by the mother were never substantiated. About one matter many of these experts were ad idem. They agree that such was the parents’ conflict at that time there were dim prospects of any joint custody arrangement.
In February 2003, the respondent father applied to the courts in Sweden to have the children live with him. In March 2003 a District Court in Sweden made orders for shared custody and for the parents to enter mediation. Also in March 2003 the mother made a report to the Swedish police alleging that the father had sexually abused the children.
Commencing 12 April, 2003 and for a period of two and a half months thereafter, the children were placed in a foster home. They remained there for the balance of the investigation. Within the first weeks of entering foster care, F had his sixth birthday and E turned four years of age.
The assessment of the children by social services dated 10 April, 2003 and cited in the judgment of the Vastmanlands District Court of 6 February, 2004, provides a context for the children’s turmoil during their time in Sweden following separation:
. . . Both parents are in strong crisis and don’t appear to be able to keep back their own needs but act out their worry and anxiety. Structure, continuity and predictability are missing in both parent’s relationship with the children. They appear not to be able to protect the children so the children have to live in an environment which can be seen as insecure, confused and aggressive. The mother shows behaviour and actions which seem confused and it is impossible to imagine a context which must be much more difficult of the child. The father lacks understanding of his own actions and how they influence the children. It is difficult to imagine what happened in Australia. There is a risk that the children’s situation won’t be properly investigated when the mother is not considered believable as she has changed her statements during the investigation. The assessment is that whether or not the children have been exposed to sexual abuse, they are in a situation where they appear to exist without secure adults who can care for their needs. The interaction and the parents’ ability to parent must be investigated during a lengthy period of time where adult psychiatric competence is available.
On 24 June, 2003 the District Court of Vastmanland ordered that until further order the respondent father have sole custody of the children.
On 6 February 2004 a highly contested hearing was held in the Vastmanlands District Court. It is relevant to briefly repeat the parties’ competing proposals at this hearing. They provide a context to the current dispute and the orders put in place by that court the implementation of which this court is now requested to facilitate.
The father indicated that he intended to move to Australia and permanently settle here with the children. If the children were to live with him, he proposed that the mother would have access for 5 weeks during the Australian summer holidays and 4 weeks during the Swedish summer holidays. He therefore opposed the mother’s proposed custody and access arrangements. In the event that the children were to permanently live with the mother in Sweden, he proposed that he have access to the children 5 weeks during the Swedish summer holidays and 4 weeks during the Swedish Christmas holidays.
The mother opposed the father’s proposal for sole custody and that the children should live with him. She proposed joint custody. She proposed a number of arrangements that would allow the children the opportunity to spend time with her if she were unsuccessful in the case. She submitted that even if the father did move to Australia and the children were to live with her, that he have access to the children in Sweden on the same formula he proposed for her; were they to live with him, save for that that access to occur in Sweden.
At the conclusion of that hearing on 6 February, 2004 the father was granted sole custody of the children. He was permitted to relocate with the boys to reside permanently in Australia, subject to the children having access visits with their mother. It appears that the orders did not specify where the access visits were to take place or, if the children were to travel back to Sweden for access, how their travel expenses were to be met. These visits were to occur for five weeks during the Australian summer holidays which occur between 1 December and 1 February and four weeks during the Swedish summer holiday, occurring during the Australian winter holiday which falls some time before the end of June until the end of July.
The father’s case before the Swedish District Court was that he would easily be able to comply with a court order allowing the children to return for access in Sweden. He also proposed that the mother and her family could come to Australia to meet the children. He gave evidence to that court that his salary when he returned to Australia would be around 500,000 Swedish kronor, or $89,285 Australian dollars a year. He indicated that the living standard is cheaper than in Sweden, presumably allowing his funds to stretch further. In any event as a British Airways member, he gave evidence of having accrued 160,000 points, to facilitate free flights.
On 7 February, 2004 the father and children left Sweden for Australia. The mother deposes that he left with the children without providing her an opportunity to say goodbye. Upon arriving in Australia the father and boys settled first in South Australia. In April 2006 they moved to Victoria where they still reside. They now live in a rental property in a suburb of Melbourne. It is common ground in these proceedings that Australia is now the uncontested place of habitual residence of the children. The boys had access with the mother in Sweden in June/July 2004. The father travelled with the boys and met the cost of airfares.
On 26 September, 2004 child protection services and the police in South Australia visited the father. They investigated allegations made by the mother that the children had been sexually abused by the father’s brother in law.
On 16 December, 2004, the mother appealed the original decision of Vastmanlands District Court to the SVEA Court of Appeal. The father cross appealed, seeking that the mother’s right of access be exercised in Australia. The Appeal Court upheld the original decision and affirmed the mother’s right of access to the children and held that ‘it is important that the access can take place under as natural circumstances as possible. Access should therefore take place in Sweden to the extent that has been decided in the District Court”. It appears that there was still no order apportioning responsibility for travel costs.
On 25 December, 2004 the mother had access to the boys for 5 weeks in Sweden facilitated by the father and the children returning to Sweden at his expense.
In June 2005 the children visited their mother in Sweden pursuant to the Swedish orders. This visit was for a period of 4 weeks from 25 June, 2005 to 23 July, 2005. Again this was facilitated by the father returning to Sweden with the children at his expense. Unbeknown to the mother, this was to be the last access visit by the boys in Sweden.
The father deposes that he facilitated three access visits between the mother and the children in Sweden in 2004 and 2005 by paying return airline tickets for the children and himself, pursuant to the orders of 6 February, 2004 of the Vastmanlands District Court.
On 5 August, 2005 the mother filed an application for leave to appeal the first instance and intermediate appeal decisions to the Supreme Court of Sweden. That application for leave to appeal was dismissed. Since that time, the father has not taken the boys back to Sweden to see their mother and has been in breach of those orders, which entitled the requesting parent to have access for five weeks during the Australian summer school holidays in 2005, 2006 and 2007 and for four weeks during July in 2006 and 2007.
The father gave evidence that, contrary to the evidence which he gave in Sweden, he did not take up the job earning $89,000 with SE Company as a sales representative. Instead, when he returned to Australia he decided to look after the children. He preferred not to take a job involving a degree of travel around Australia. When pressed, he said that he had accepted the position with SE Company in October or November 2003, while he was still living in Sweden. When the matter of the mother’s appeal came before the courts in Sweden in 2004, the respondent father did not advise the mother or the court of the unfavourable or voluntary change in his financial circumstances. His advice of the change in his financial circumstances to the mother was given by his Swedish solicitors on 3 October, 2005, some eight months after the appeal judgment was delivered by the Svea Court of Appeal in December 2004. A copy of a letter to this effect is annexed to his affidavit of 16 October, 2007. He had not taken up the employment about which he’d given evidence and had not advised that Court that he now had insufficient income with which to support the children’s regular trips back to Sweden.
It was also made clear, from the cross examination of the father, that the employer was his sister and brother in law and the business was a family business. Whereas the father variously referred to his potential employer as company called SE Company and then SO Company. The owner of SO Company was a person he named as Mr A. Later, the father identified the registered proprietor of SO Company as Mr A and the father’s brother in law. The father’s brother in law is married to the father’s sister.
The father told this court that when he had told the Swedish Court of the job in Australia with the earnings of $89,000 he knew that the job involved considerable travel. He agreed he had accepted that position with a full understanding of the requirements of the position. When he arrived back in Australia on 7 or 8 February 2004, the father did not start work at SO Company until July 2004, when he took a position earning, approximately $46,000 to $50,000. As indicated, the appellate court in Sweden was not alerted to this change in circumstances when the father cross-appealed the mother’s appeal in December 2004.
The father gave evidence that, in some capacity, he undertook various initiatives in SE Company to expand the company’s interests, building on his contacts in Scandanavian countries and Europe. These initiatives as he describes them, were unsuccessful. He gave an account of two work related trips involving travel to Thailand and Paris, France. These trips were funded by SE Company. The father accrued the frequent flyer points, the balance of which was reported at trial to be around 230,000 points. When it was requested that he could use those loyalty points toward the boys’ cost of travel to Sweden, he said that these points were owed, according to the father, to his brother in law in lieu of part payment for the debt he owed to him for legal fees in these proceedings.
The father’s account is that he was retrenched by SE Company on 1 April, 2005. According to his evidence, he did not seek employment for a year after that. He explained that he had been coping with emotional difficulties himself; with the boys as a single parent; with relocation and with the allegations made by the mother against him. I accept that this was a difficult time for him. Adjusting to his new circumstances in Australia would have been challenging after a long period of living overseas. However, his evidence is that for that whole period during 2004-2005, he did not seek employment and lived on single parent and family tax benefit. His financial reserves were depleted. The proceeds of the property settlement he had achieved with the mother in Sweden were exhausted. His choice not to work must have affected his living standard.
In April, 2006 he said he moved to Melbourne, Victoria to improve his employment prospects. This proposition is hard to reconcile with his evidence that he did not seek employment in Adelaide over the previous year. Upon his move to Victoria, his evidence is that he applied for no other jobs and took up an opportunity working part-time for SE Company, the company that had previously retrenched him. The father still works part time for that company as a sales representative earning $20,800 per year. He does not have a contract of employment because his employment is based on a verbal agreement. He produced and “Employee Pay History, [SE} Pty Ltd” in which his salary is recorded as $400 per week, and $36 and $72 variously paid into superannuation, being 9% of that salary.
Both F and E are now at school obviating the need for child care. When pressed as to whether he would take a full time position at SE Company or with another employer in future, the father would not answer the question directly.
In answer to any inquiries regarding his employment, he referred repeatedly to the need to take care of his sons as a matter of absolute priority. He had not applied for a full time job as the only employment for which he is experienced and qualified is sales. Such jobs, according to his evidence, require a full time commitment, interstate travel and many hours away from the home. He deposed that he thought the children need a full-time father given the trauma associated with various events and that he thought it to be in their interests that he be available to them and that he wants to spend time with them. He did not provide any independent evidence of that trauma. Mr K, the family reporter did not identify any problems in the boys other than those arising from two children’s normal responses to parents’ separation in hostile circumstances.
Underlying the father’s evidence throughout proceedings is his unsubstantiated view that full time employment is incompatible with good or effective parenting, a view that cannot be supported by ordinary community standards and seems not to take into account by any measure that he has now repartnered. Many parents effectively juggle these responsibilities, even when both their children are not at school, which E and F are. I do not find the father’s claim that his circumstances preclude him from working more extensively to be plausible.
The father tendered a financial statement on August 15, 2007 to this court. The most significant of his assets is the total gross value of his Superannuation which he valued at $150,000 in a Swedish Superannuation Fund. The father accrued these Superannuation funds in Sweden from his employment and government payments over the course of his 12 years living there. He tendered a website extract of the Superannuation fund in support of his account that these Superannuation entitlements are subject to rules which prohibit them vesting until the age of 61 years, and then only able to be accessed on a regime delivered in a manner similar to a pension.
The father’s evidence was that he used the proceeds of his property settlement with the requesting parent to find the airfares to Sweden after his relocation to Australia. He gave evidence of a debt of $37,000 and a debt of $17,394 in his affidavit of 16 October, 2007. A debt of $20,000 was also canvassed. He said it comprised $10,500 from the children’s own savings held in trust accounts and about $9500 from his brother-in-law in Adelaide. This latter figure was later revised upward to $12,000 and $18,000. These borrowings he said followed a telephone call from his lawyers seeking a deposit of $20,000 into the trust account for legal fees.
By the father’s hand, the children have had all of their savings of $10,500 used in part-payment of the father’s legal fees in these proceedings.
The father cited the cost of each single trip for the children to visit the mother pursuant to her right of access to be in the vicinity of $10,000. He was pressed about why he had used the funds from the children’s trust accounts to fund legal fees when he could have used these same funds to pay for them to access to their mother in December 2005. He said he had asked the children if he could borrow the funds, but had not asked anyone else. Any suggestion that the children could consent to these borrowings is risible. They were then aged eight and six years.
I am satisfied the respondent’s decision not to seek employment outside the family business has probably adversely impacted on his ability to comply with the Swedish court orders. The father has made some choices that led to those circumstances, such as not pursuing full time employment, or testing the value of his skills in the marketplace. I do not find his explanation of why he did not take up employment at that time to be sufficient. That said, I have no evidence of the father’s employability or opportunities so my ultimate finding is that he has not tried particularly hard to better his financial situation.
The father proposes that the mother pay all ongoing child support as assessed by the Child Support Agency. The amount he says the mother owes is $3,263 annually. It is the father’s claim that there are arrears of child support debt owed by the mother to the child support agency in Australia of approximately $1,000 as of 1 January, 2008. There was no evidence to support this contention. He provided a copy of a letter from the Child Support Agency, annexed to his affidavit of 16 October, 2007 which assesses the mother to be in arrears of $8,695.27. That letter also identifies a monthly liability of the mother of $26.67 and advises that the case has been referred to the Swedish authorities requesting that they pursue the matter.
There was no application before me which particularized any claim for child support, nor any application seeking orders in this matter. The mother’s affidavit evidence about her very modest financial circumstances was not challenged.
I am satisfied that the father has structured his financial affairs for the collateral benefit of saying that he cannot afford to financially support the access regime to which he agreed when he left Sweden. It follows that I do not accept that he does not have the ability to meet some such expenses. If it became a priority for him, as it is for the mother, I am reasonably satisfied that he would find the necessary funds. That said, I am not satisfied that the father has the wherewithal to pay for all transport costs associated with access as he also carries the full financial cost of the children without assistance from the mother by way of child support. I am informed by the concession of the applicant State Central Authority that the cost travel should be shared on a trip about basis that the mother must have access to some funds.
I am satisfied that a reasonable apportionment of the travel costs is that each parent pays one half. That can be achieved on a trip about basis or by the mother booking and paying for the journey to Sweden and the father booking and paying for the homeward journey. There was no evidence as to the practicability of splitting the cost of payment for each trip. Accordingly, I will order that the parents be responsible for the costs on a trip about basis.
I do regard it as necessarily in the boys’ best interests to be accompanied on the first trip to Sweden. The father says that he will fly with the boys. If he does so, it should be at his own expense. If the mother chooses to accompany the boys that fare should be borne by her. My impression is that the father will accompany the boys at his own expense. If I am wrong and the father will not travel by air at his own expense, the mother should have the option to accompany the children herself even if this is the more expensive option for her. After the first trip, the boys may travel as unaccompanied minors. They are still young children but, by that stage, will have made the trip on a number of occasions and will have the benefit of being cared for by airline staff.
Capacity of the parents to meet the children’s needs[51]
[51] s 60CC(3)(f) Family Law Act 1975 (Cth)
In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.
I am satisfied on the evidence that the father’s capacity to provide for the emotional and intellectual needs is less than optimal vis a vis the need of the boys to spend time with the mother. I wonder to what extent the father has moved on from the point at which the Swedish authorities described him as having a lack of understanding of how his actions can impact on the children[52].
[52] see paragraph 77 of these reasons
There is no evidence before me that leads me to doubt that the mother has the requisite capacity to care for the boys for a period of 4 to 5 weeks twice a year in her country of origin. That said, I am of the view that the boys’ time in Sweden would be enhanced if they are able to stay with the maternal grandparents on at least the first two occasions but I will not make orders requiring that be the case. The opportunity for the boys to stay with the maternal grandparents is not, to my mind, a prerequisite to the boys going to Sweden. It would enhance the benefits for the boys but, if it does not eventuate or cannot happen, I am not persuaded that the mother lacks the requisite capacity. That said, the boys should know in advance where they are going to stay so I will require the mother to provide notice to the father.
The children’s maturity, sex, background and other characteristics[53]
[53] s 60CC(3)(g) Family Law Act 1975(Cth)
I consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and her parents.
F was 10 and a half years old at the commencement of this hearing and a student in Grade 5 in M Primary School. E, who was 8 and half years of age at the commencement of the hearing was a student in Grade 3 at M Primary school.
The family consultant described both F and E as delightful boys. He observed that both parents were appropriate with the boys and “sensitive to the boys needs”. Both boys were assessed as meeting their developmental milestones, quietly spoken and offering positive eye contact. Both of the boys also reported positive experiences at school and of living in Australia.
Sweden is the boys’ country of origin. I am satisfied that the boys will derive considerable benefit from experiencing Swedish life first hand. I have given consideration to the benefits which would be derived for the boys if access was to take place in Australia including but not limited to the mother being able to share in the life that they have made here. However, from the perspective of the boys I am comfortably satisfied that they will derive most benefit from seeing the mother in Sweden.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[54]
[54] s 60CC(3)(i) Family Law Act 1975 (Cth)
I must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil his/her responsibilities as a parent. This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time[55] with and communicate with[56] the child and to participate about major long term issues concerning child[57]. It includes the extent to which the parent has fulfilled or failed to fulfil his/her obligations to support the child financially[58] or otherwise maintain the child. It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the long term welfare[59] and the other parent communicating with the children[60] or spending time with the children.[61].
[55] s 60CC(4)(a)(ii) Family Law Act 1975 (Cth).
[56] s 60CC(4)(a)(iii) Family Law Act 1975 (Cth).
[57] s 60CC(4)(a)(i) Family Law Act 1975 (Cth).
[58] s 60CC(4)(c) Family Law Act 1975 (Cth).
[59] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).
[60] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
[61] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
I am required, and do, have particular regard to events which have happened, and circumstances which have existed, since the parties separated.[62]
[62] s 60CC(4A) Family Law Act 1975 (Cth).
Since separation the relationship between the parents has been characterized by bitterness and hostility. The records from Sweden show that that hostility is manifest in various proceedings before the Swedish courts. The parents have shown little capacity to take account of the children’s needs in their warring. Proceedings before this court are a continuation of that conflict. There are no signs of the parents moving toward a more cooperative approach to parenting.
After having reviewed the evidence, I am left with the distinct impression that each parent focuses considerably on their own needs as opposed to the needs of the children and I make a finding to that effect.
Any family violence involving the children or any member of the children’s family and family violence orders[63]
[63] ss 60CC(3)(j) and (k) Family Law Act (Cth)
As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property. I do not consider this to be a consideration relevant to this case.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[64]
[64] s 60CC(3)(l) Family Law Act (Cth)
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation.
Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders.
In the present case, I fear that the parties will require future intervention by the court probably as frequently as when access takes place. Therefore, in the hope that a streamlined procedure for any future applications may minimise disruption for the children, I will grant liberty to the parties to have the matter re listed before me, if I am reasonably available. I will also request that Child Dispute Services of this Court supervise the parenting arrangements for 2 years. Hopefully that will give the parties some access to facilitated discussions about the boys.
Any other fact or circumstance the Court thinks relevant[65]
[65] s 60CC(3)(m) Family Law Act (Cth)
Having dealt with the primary and additional considerations, I am comfortable with my conclusion that it is in the best interests of the children to see their mother in Sweden twice a year. However, whilst the best interests of the boys is the paramount consideration, it is not the only consideration.
In this case, the purpose of the 1980 Convention must be considered. It is directed toward the legal cooperation and the enhancement of the international movement of children. The Convention acknowledges an international community and the need for reciprocity in our approaches to custody, access and wrongful removal. These purposes complement rather than displace the best interests of the subject children. Given my findings, I am in the happy position that the significant weight that I am prepared to accord to the principles of the 1980 Convention are not at all inconsistent with the result at which I have arrived based on the best interests of the children.
Parental responsibility
The father seeks an order which I take as being the equivalent of having sole parental responsibility. His position is supported by the independent children’s lawyer.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[66] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[67] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[66] s 61B Family Law Act 1975 (Cth).
[67] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[68] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[69] and to ‘make a genuine effort to come to a joint decision about that issue’.[70] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[68] s 65DAC(2) Family Law Act 1975 (Cth).
[69] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[70] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted, inter alia, in the following circumstances:-
a) If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[71] or abuse of the child or another child who is a member of the parent’s family;[72]
b) Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[73]
[71] s 61DA(2)(b) Family Law Act 1975 (Cth).
[72] s 61DA(2)(a) Family Law Act 1975 (Cth).
[73] s 61DA(4) Family Law Act 1975 (Cth).
I am not satisfied that this case falls within either category of exception. In fact my view is quite the opposite as I am satisfied that it is in the best interests of the children for the mother to be consulted about the boys’ education, religious and cultural upbringing and any changes to living arrangements which would make it more difficult for the boys to have access to their mother.
I have considered that the parents do not have a relationship in which they can talk freely about the children. It will be difficult for them to communicate and I do have regard to the fact that the mother lives in another country so it is not going to be appropriate or reasonable for the father to continually refer issues to her to see if they can reach agreement. In this case, the parties obligation to consult is likely to be met by the father notifying the mother, in comprehensive terms, of what he identifies the issue to be and what he proposes to do about it and the mother being given an adequate time to consider what alternatives she wishes to put forward or whether proceedings in this court may be necessary.
I will not accede to the father’s application for sole responsibility for the long term care welfare and development of the children. I will order that the parents have equal shared parental responsibility.
Consideration of equal time or substantial and significant time with both parents
Sub-section 65DAA(1) of the Act provides that, in making a parenting order for a child’s parents to have equal shared parental responsibility for the child, I must consider the following:
a) whether the child spending equal time with each of the parents would be in the best interests of the child;[74] and
b) whether the child spending equal time with each of the parents is reasonably practicable;[75] and
c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.[76]
[74] s 65DAA(1)(a) Family Law Act 1975 (Cth).
[75] s 65DAA(1)(b) Family Law Act 1975 (Cth).
[76] s 65DAA(1)(c) Family Law Act 1975 (Cth).
The fact that the mother resides in Sweden makes substantial or significant time impracticable in common sense terms and in the terms of what is ‘reasonably practicable’ by taking into account the factors listed in s 65DAA(5).
Before leaving this topic, however, I will mention ss 65DAA(3) of the Act which states that the child will be taken to spend substantial and significant time with a parent only if that time includes weekdays, weekends, holidays and non-holidays[77] and involvement of the parent in aspects of the child’s daily routine[78] and occasions of significance to both parent and child.[79] The legislation notes that these factors are not intended to limit the matters to which the Court may consider in determining whether the time spent with a child is substantial and significant.[80] Just because substantial or significant time is not feasible in this case on a regular and frequent basis, I can still (and do) have regard to the nature of the relationship contemplated by the legislature as being beneficial to children to whom exceptions do not apply. To the extent that I am able to do so, I will order that the boys spend time with and communicate with the mother so that there is a normalcy to their life together.
[77] s 65DAA(3)(a) Family Law Act 1975 (Cth).
[78] s 65DAA(3)(b)(i) Family Law Act 1975 (Cth).
[79] ss 65DAA(3)(b)(ii) and 65DAA(3)(c) Family Law Act 1975 (Cth).
[80] s 65DAA(4) Family Law Act 1975 (Cth).
The father and the independent children’s lawyer both seek an order declaring that the children’s habitual place of residence to be in Australia and that nothing in these orders, including provision for the mother to exercise rights of access to the children in Sweden, should vary or change that habitual place of residence. With respect, they appear to misunderstand the concept of habitual residence. Habitual residence is not something that it is open to one parent to change unilaterally absent consent (by which time it is not unilateral) or acquiescence. I will not accede to the father’s application in this regard.
Conclusion
I found difficulty in this case based on the disjointed hearing times, attributable in large part to the interim issues and then the application of all parties for an extended adjournment to see if the matter could be amicably resolved. However, upon taking time to go through the evidence and isolate the real issues, I have every confidence that the appropriate result involves the children seeing their mother as frequently as twice a year in Sweden for extended periods which incorporate as much of the boys’ school holidays here as possible. In order for that outcome to be implemented, I will make those orders for sharing costs of travel providing notice of arrangements and certain information sought by the father which I regard as soundly based and not too onerous for the mother . There should also be orders which regularise the living arrangements for the boys expressed as them residing with the father in Australia.
I will provide that the children can go back to Sweden for access in the forthcoming September school holidays because the July 2008 school holidays are now underway and I am satisfied that the Christmas/summer holidays, are too far into the future for F and E to wait to spend time with the mother.
For the above reasons, I make the orders set out at the commencement of this judgment.
I certify that the preceding two hundred and eighty six (286) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 30 June 2008
- AGLC
- State Central Authority and Peddar [2008] FamCA 519
- Case
- [2008] FamCA 519
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders for the children, including the allocation of parental responsibility, the children's living arrangements, and the schedule for the children to spend time with the mother in Sweden. Further issues included the practical arrangements for travel, communication, and the exchange of information between the parents, as well as provisions for the supervision of compliance with the orders.
Bennett J ordered that previous parenting orders be discharged and that the parents have equal shared parental responsibility. The children were ordered to live with the father, with specific provisions for the children to spend time with the mother in Sweden during school holidays and other agreed periods. The orders detailed the responsibilities of each parent regarding travel arrangements, including the booking and payment of flights, and stipulated communication protocols, such as telephone and webcam access. The court also made orders regarding the provision of school reports and photographs to the mother, notification of any change of residential address, and the supervision of compliance with the orders for a period not exceeding two years by a family consultant. All extant applications were dismissed.
Orders
Orders of the court
1.
That all previous parenting orders in respect of the children F born … April, 1997 and E born … April, 1999 (“the children”) be discharged.
2.
That the parents, Mr Peddar (“the father”) and … (“the mother”) have equal shared parental responsibility for the children.
3.
That the children live with the father.
4.
That the children spend time with the mother, in Sweden, as follows:
(a) for up to four weeks in September/October 2008 to include the children’s third term school vacation:
(b) for five weeks during the Australian Christmas school holiday period in each year; and
(c) for four weeks during June and July in 2009 and each year thereafter to include the children’s second term school vacation;
(d) as may be otherwise agreed between the parties and confirmed in writing.
5.
That in the event that the mother travels to Australia, she provide the father with reasonable notice of her intention to do so with a view to the parties making arrangements for the mother to spend time with the boys as may be agreed or, in the absence of agreement, as ordered by the Court.
6.
That the mother book and pay for the children’s unaccompanied return airline tickets for the first occasion of time spent between herself and the boys in Sweden and each alternate period of time spent thereafter.
7.
That the father book and pay for the children’s unaccompanied return airline tickets for the second occasion of time spent between the mother and the boys in Sweden and on each alternate period of time spent thereafter.
8.
That not less than 30 days prior to the commencement of the first period of time to be spent by the boys in Sweden, the mother notify the father in writing of whether the boys will reside at the residence of their maternal grandparents, … and …, during their time in Sweden.
9.
That each parent and/or his or her respective agent, cause the children to be transported to the relevant airport in a timely manner to enable the children to board the scheduled flights.
10.
That no less than one month prior to the time to be spent referred to in paragraph (4) hereof, the parent responsible for the payment of the children’s flights provide to the other parent a detailed itinerary of the flights and a copy of the children’s airline tickets (E-ticket).
11.
That the father be at liberty to accompany the children on the flights to and from Sweden and if he does, the father be responsible for the cost of his own travel. If the father does propose to travel with the children, he immediately provide the mother with notice of his intention to do so.
12.
That the mother be at liberty to accompany the children on the flights to and from Sweden and if she does, the mother be responsible for the cost of her own travel.
13.
That the mother provide to the father a telephone number for the father to have telephone communication during the children’s time in Sweden pursuant to this order.
14.
That notwithstanding any other notice provision in this Order, the mother provide to the father written details of the address or addresses where the children will be residing while in Sweden or spending time with her.
15.
That no less than fourteen days prior to each period of time, the mother provide to the Swedish Central Authority and the father written details of her passport number and driving licence number.
16.
That no less than fourteen days prior to each period of time, the mother write to the children assuring them that she has no intention to retain them in Sweden permanently and that the children will be returned to Australia and the date of their return journey.
17.
That the mother, at her expense, be entitled to communicate by telephone with the children up to twice a week with additional telephone communication permitted on special occasions, including Easter, the children’s birthdays, Mothers’ Day and the mother’s birthday.
18.
That the father, at his expense, have telephone communication with the children twice a week when they are in Sweden spending time with the other with additional telephone communication at Christmas when the children are with the mother pursuant to this Order.
19.
That each parent do all things necessary to facilitate Webcam access between the mother and the children between 4:00 to 5:00 pm. on Sunday of each week (Australian Eastern Standard/Daylight saving time).
20.
That each parent shall refrain from discussing with the children issues which could reflect negatively on the other parent including allegations of sexual abuse, kidnap and/or wrongful retention.
21.
That the father forthwith authorise the principal of M School and each school attended by the children thereafter from time to time to provide to the mother, at her expense (if any) :
(a) copies of each school report in respect of a child;
(b) order forms for photos of the children; and
(c) publications routinely provided to parents.
22.
That notwithstanding the provisions in the preceding paragraph of this Order, the father send the mother at least one school photograph of each child each year.
23.
That not less than fourteen days prior to any change of residential address of the children, the father shall provide the mother with written details of the children’s new address, including any new landline and mobile telephone numbers.
24.
That pursuant to section 65L(1) of the Family Law Act 1975 (“the Act”), compliance with these orders be supervised, as far as practicable, for a period not exceeding two years by a family consultant nominated by the Manager, Child Dispute Services of this Registry of the Court and that such supervision be reportable in the event :
(a) another application is filed pursuant to the Act; and
(b) the judicial officer before whom it is listed requests such a report.
IT IS REQUESTED:
25.
That the independent children’s lawyer meet with the children as soon as practicable and advise them of the nature and effect of the orders made this day.
IT IS FURTHER ORDERED:
26.
That a sealed copy of these orders be provided to the principal at M School and the principal of each other school attended by a child from time to time.
27.
That I reserve liberty to each party and the mother to apply in relation to implementation of this Order and direct that any such application may be returnable before me as soon as practicable.
28.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
29.
If either parent initiates further proceedings in this Court in relation to the children, each party is at liberty to seek to have that application listed for mention before myself for directions if I am reasonably available and to do so by contacting my Associate, with their details.
30.
That all extant applications be otherwise dismissed.
IT IS DIRECTED:
31.
That these proceedings be removed from the List of matters awaiting finalisation.
32.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
IT IS CERTIFIED:
33.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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