State Central Authority and Uurainen (No. 2)

[2008] FamCA 1046

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & UURAINEN (NO. 2) [2008] FamCA 1046

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application outside 12 months – 4 year old child – Child settled in new environment – Discretion – Hardship

APPLICANT: State Central Authority

RESPONDENT: Ms Uurainen

FILE NUMBER: MLC 6385 of 2008

DATE DELIVERED: 5 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Jordan J

HEARING DATE: 5 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R. Stoikovska

SOLICITOR FOR THE APPLICANT:

Director, Legal Services Branch,

Melbourne

COUNSEL FOR THE RESPONDENT: Mr I. C. Duffy

SOLICITOR FOR THE RESPONDENT: McCracken & McCracken

Orders

IT IS ORDERED

1. That the application filed 14 July 2008 be dismissed.

IT IS REQUESTED

1. That the Australian Federal Police remove the name of the child, …, born … December 2003, from the Airport Watch List in force at all points of arrival and departure of the Commonwealth of Australia.

IT IS FURTHER ORDERED

1. That any passports in relation to the said child held by the Registrar of the Family Court of Australia at Melbourne be returned.

2. That the proceedings be removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Uurainen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6385 of 2008

STATE CENTRAL AUTHORITY

Applicant

And

MS UURAINEN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application by the Central Authority for an order under the Hague Convention pursuant to the Family Law (Child Abduction Convention) Regulations for the return of the child, a four‑year‑old girl born in December 2003, to Finland.

2. The evidence establishes to my satisfaction, or it has been conceded, that the child was removed from Finland to Australia in January 2007.  It is not argued otherwise than that the habitual place of residence of the child prior to her removal was Finland.  At least for the present purposes, there is evidence capable of supporting a finding that, at the time, the father had rights of custody pursuant to an agreement executed by the parties in 2004 and confirmed by the Finnish City Social and Health Board in accordance with Section 8 of the Child Custody and Rights of Access Act.

3. For the purposes of my deliberations, I proceed upon the basis that, prior to the removal of the child from Finland, the father was exercising rights of custody at the time.

4. There is issue between the mother and father about the state of the father's knowledge and consent in relation to the removal of the child from Finland.  It is unnecessary to address that question, because it is common ground that, when the father was advised of the mother's intention to retain the child in Australia, he made it very clear to her that she did not have his consent.

5. There is an issue between the parties whether these exchanges took place in April or June of 2007.  Again, for present purposes it is not necessary to address that question.  I am, at this stage, addressing a discrete issue.

6. The proceedings in this matter were not instituted until the application was filed on 14 July.  It is agreed that, on any version, that is outside the 12 months time prescribed by the regulations.  Regulation 16 of the Family Law Regulations, subparagraph (1), provides, in essence, that if an application is made within 12 months, the court must then make an order for the return of the child unless one of the defences in subparagraph (3) is made out and the court exercises the discretion which arises in favour of the respondent. 

7. Subparagraph (2) of Regulation 16 prescribes that, if the application is made after the expiration of 12 months and the court is satisfied that the person opposing the return has not established the child has settled in his her new environment, the court must make an order.   It follows that, if the application is outside the 12 months and the mother establishes that the child is settled in her new environment, the court is not obliged to make an order.  I am satisfied, and counsel concedes, that, in those circumstances, a discretion arises and that the court may conclude that it is appropriate or otherwise to make the order sought, and I proceed on that basis.

8. Having established the application is made outside the 12 months, I address the supplementary question of whether the mother has satisfied the court that the child is settled in her new environment.

9. The child is four years of age, almost five.  She would have been just four at the time of her removal to, and retention in, Australia.  It is clear she has been in the primary care of her mother since birth.  Of course, she has been in the primary care of her mother since she moved to Australia.  In addition, in December 2006, the mother formed a relationship with her current husband.  They were engaged in December of that year, travelled together to Australia in January 2007 and married, I believe, in June of last year.  The child has resided with the mother and her partner, therefore, since her removal to Australia.

10. I note from the material that the newly-constituted family resided at an address at B for almost 12 months until December 2007, and they have resided at an address at S, a home owned by the parties, for almost 12 months since December 2007. 

11. Both the mother and her husband give evidence of the child's close attachment to her mother and of the fact that she relates well to her mother's new husband.  The mother and her husband give evidence which suggests that the child is well settled in Australia and in her new home.  Of course, whilst one would not expect to see evidence to the contrary, the matters about which they observe and comment are inherently probable propositions, given the apparent settled environment and the care the mother and her husband are able to provide.

12. The child attends preschool twice per week and receives good reports from her school.  The mother’s husband supports the wife and the child and he is in well-paid employment and well able to do so.  Their material talks about the child forming friendships with friends and relatives and other young children.  The evidence of the mother in this regard is corroborated by a wide range of deponents who have provided affidavits affirming all or most of those matters and they come from family friends and other family members.

13. In addition, in this case, I have a report from a family consultant which is necessarily quite limited, but to the extent the family consultant is able to comment on these matters after a brief interview, her evidence is to the effect that the child appears to be happy, confident and well-adjusted, drawing the consultant to conclude that the child gives all the appearances of being well settled. 

14. As I have said in the course of argument, the evidence is really quite overwhelming on this point and I struggle with the prospect of being able to reject what is otherwise unremarkable evidence.  In all the circumstances, the mother has established to my satisfaction that the child is, indeed, well settled in her new environment.

15. Finally, then, I turn to the exercise of a discretion which remains with the court, notwithstanding that finding, to make an order for the return of the child. 

16. As was submitted by counsel for the Department, it is important, at this stage, that the court gives proper consideration to the provisions and the sentiments behind the Hague Convention.  I take that as a proper starting point.  Where a child is removed from the habitual place of residence without the knowledge or consent of the other parent who has rights of custody and is exercising those rights, ordinarily the court should move to make orders to secure the return of the child and to prevent wrongful removal and/or abduction of children.  Not only is that the philosophy behind this legislation, I need to record that I hold views which are strongly supportive of that Hague Convention.

17. At the same time, it needs to be observed that one of the key components of this Convention focuses upon the need for prompt action.  The whole purpose of the Convention is undermined by delay, and this case perhaps highlights difficulties which can arise if parties and/or authorities and/or courts are not enlisted in a way which enables a prompt response to a wrongful removal.  In this case, there is at least a 13-month delay from the time the father became clearly aware of the mother's intentions to the date of the application.  Thereafter, there appears to have been difficulty in securing instructions, so that now, approximately 18 months has passed from the date of notification to the father.  The reality I am dealing with is that the child has been in Australia now for 22 months, which is, indeed, a most substantial period of time in the life of a four‑year‑old.

18. The Hague Convention is a Convention designed to protect the interests of children in general against the prospect of international abduction or retention.  Because of that broader objective, in hearing and determining those matters, it has been decided that the best interests of the individual children involved are not paramount and, in a sense, are secondary to the broader interests of all of the young children living in Convention countries. 

19. No doubt, subparagraph (2) of Regulation 16, which addresses circumstances arising after substantial delay, are designed to address the reality and result in a greater focus upon the interests of individual children and an acknowledgment of the fact that children, perhaps, should not be required to bear the burden of their parents' mistakes if events begin to overtake the wrongful removal.  No doubt, this is because of the likely harm which can be occasioned to children who are not only required to deal with the challenges of being wrongfully removed from a parent, but then might be asked to deal with being uprooted again after they have become settled in their new environment.

20. So, notwithstanding those reservations, I still do take account of the primary philosophy behind the Hague Convention and would not lightly decline to make orders in most of these cases.  However, on the other side of the balance sheet, as it were, I do take account of my firm findings in this matter that this particular child is well-settled in her new life.  I take account of the fact that to require the child after this passage of time to return to Finland would cause her hardship and be very disruptive in her development at a critical stage of her life.  I take account of the fact that such an order would be against the mother's wishes and that, notwithstanding her current circumstances, she would feel compelled to return to Finland with her daughter.  That would represent a significant physical and emotional disruption to her life which, again, would be likely to have some adverse impact upon the child.

21. I take particular account of the fact that an order to secure the return of the child to Finland would not be an order which would have the traditional effect of returning the child to her father and enabling them to resume regular contact and enable the father to play an active role in the child's life.  The evidence establishes that the father has not resided permanently in Finland since February 2005 and that he has spent the majority of his time away from Finland in countries such as Pakistan and Thailand.

22. On the history since 2005, a return of the child to Finland would provide her with only the intermittent benefit of the occasional visits the father might be able to accommodate.  This would be to require the child and the mother for some uncertain purpose to be based in Finland awaiting visits which may or may not occur. 

23. Further, there is the proposition suggested by the mother, which has not, in turn, been addressed by the father, that is, that the father could just as easily visit his daughter in Australia. 

24. More importantly, perhaps, the father's material is silent on his proposals.  There is no way of this court determining to what extent a return to Finland would, in fact, provide a restoration of the previous arrangements.  I do not know of the father's intentions in terms of the frequency of any visits to Finland or the duration of any stays in that country. 

25. Further, on a related question, the father's material is entirely silent on his proposal for the day-to-day care of the child.  It is known that the mother and child are currently supported by the mother's current partner.  The evidence of the mother is that the father has not provided the mother or the child with any regular and significant levels of financial support throughout the child's life.  Indeed, she says that she was required to return to the workforce when the child was quite young to provide her with proper support.  The father does not deny or respond to that allegation.  He provides no evidence of proposals for accommodation or support in the event that the mother is required to return to Finland.  His failure to do so leaves this court in a position to conclude that the hardship to the mother, in those circumstances, would be substantially greater.

26. In all the circumstances, where I have made a finding that the child is well settled in Australia, and to expose the mother and child to a return to Finland would not only expose them to disruption of their settled life, but to a great deal of uncertainty in Finland, I cannot be satisfied that it is appropriate in this case to uphold the Convention. 

27. I am satisfied that I should exercise my discretion to refuse to make the order sought by the Department.

28. In the circumstances, the only order I need to make is one dismissing the application filed on 14 July 2008.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  2 December 2008