State Central Authority and Young (Rights of Custody)
[2012] FamCA 843
•20 September 2012
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & YOUNG (Rights of Custody) | [2012] FamCA 843 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – rights of custody – matter subsequently resolved at mediation |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Young |
| INDEPENDENT CHILDREN’S LAWYER: | Ms C Smith |
| FILE NUMBER: | MLC | 5904 | of | 2012 |
| DATE DELIVERED: | 20 September 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 8, 9 , 10 and 20 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Colla |
| SOLICITOR FOR THE APPLICANT: | State Central Authority Department of Human Services |
| COUNSEL FOR THE RESPONDENT: | Mr Stanley |
| SOLICITOR FOR THE RESPONDENT: | Burrell Family Law | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid | |
Orders
IT IS ORDERED THAT:
1.This matter be listed on 12 September 2012 estimated to take 3 days.
2.The hearing listed for 10 September 2012 be vacated.
3.The respondent mother file and serve by not later than 12.00 noon on Friday 31 August 2012 any evidence upon which she relies for the balance of the issues to be determined.
4.The State Central Authority file and serve any further evidence upon which it relies by not later than Thursday 6 September 2012.
5.The family consultant be available for cross-examination on Thursday 13 September 2012 and Friday 14 September 2012.
6.That an outline of argument be filed and served as follows:-
a)the respondent mother by 12.00 noon on 7 September 2012;
b)The applicant State Central Authority by 12.00 noon on 10 September 2012 and
c)The independent children’s lawyer by 12.00 noon on 11 September 2012.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Young has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 5904 of 2012
| STATE CENTRAL AUTHORITY |
Applicant
And
| MS YOUNG |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
This hearing concerns the child D born in March 2003. It is the first part of a bifurcated determination of the State Central Authority’s application for the return of the child to the Republic of South Africa pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The rationale for having a hearing in two parts is dealt with in my reasons for decision delivered on 20 July 2012 at case neutral citation [2012] FamCA 563.
This hearing is confined to whether the requesting parent has rights of custody such as are required to support a request for return under the Regulations.
On 20 August 2012 I announced that I concluded that the father does and did have rights of custody under the law of the Republic of South Africa, as required by reg 16(1A)(c)), and that I would deliver my reasons subsequently. These are my reasons.
The hearing (and technological challenges)
All parties were legally represented.
The matter proceeded by way of evidence on affidavit, cross examination followed by submissions.
The hearing commenced at 4 p.m. on 8 August 2012 which, having regard to international time zones, was 8 a.m. in Johannesburg, South Africa. The purpose of sitting outside usual hours was to take the cross examination by video link of the father and the other witnesses, in South Africa, upon whom the State Central Authority rely. The father paid for the video link connection. Unfortunately, difficulties with speed, resolution and connectivity required that the technicians change from the planned IP connection (via computer) to the much more expensive ISDN connection (via 4 telephone lines). I pause to note that ISDN connection comes at a very significant cost of about $4,000 for three or so hours connectivity. That is a potentially prohibitive cost when it is to born by a party or, as in this case, the father who is a non party
This court is the court in which it has been agreed, between the Family Courts, that the hearing of international relocation cases and cases under the 1980 Convention is to be concentrated. Surely, an elementary feature of assuming responsibility to hear these cases is having the wherewithal to take evidence from overseas without huge financial impost on litigants or users. Some time ago the Court’s administration advised that it had acquired the necessary technology for evidence to be obtained at minimal expense through IP connections. However, it has still not been able to implement the technology. That is a most regrettable state of affairs which, in my view it is in the interests of justice to rectify without further delay.
In terms of the pressing need for cost effective technology, I note that the Regulation 26 report in this matter was allocated to a family consultant within the Child Dispute Services Section of the Court. However, those arrangements were cancelled because the family consultant was unable to conduct an interview with the father by audio visual link, including by Skype which is free. In order to provide the Regulation 26 report in a timely way, the Manager of Child Dispute Services contracted the assessment to an outside practitioner, the psychologist Ms K. Ms K used Skype (without cost) for her assessment interview of the husband. The cost of the Regulation 26 Report has been borne by the Court.
Then, the independent children’s lawyer arranged mediation between the parents. The Child Dispute Section of the Court has two specialist mediators for Hague abductions matters whose services would be free of cost to the parties. However, the mediation was outsourced because there was no technological support for a mediation to be conducted audio visually between Melbourne and Johannesburg. I agree the audio visual communication for mediation is essential and that it will usually be inappropriate for one party to participate in the mediation in person and for the other party to be able to participate only by telephone. [The outcome of this mediation is a post script to these reasons]
I understand that the Court and its administration are in the midst of a most serious strategy to cut spending. However, this case illustrates some ways in which our lack of resources has compromised the Court’s ability to deliver its core services or, as in the case of the outsourcing of the reg 26 Report, that the service has been delivered at a cost to the Court which is likely to have been in excess of what the Court might otherwise have paid if the Court’s family consultants were technically supported to conduct audio visual interviews. Fortunately the interests of the litigants and the child were not compromised in this instance. I suggest, however, that the Court needs to wrap some utilities around cases with a significant international component, such as Hague abduction cases, particularly where most litigants lack the means and resources to pay for ISDN connections and the like but may have ready access to IP technology.
Finally, in the terms of the necessity for audio visual hearings between countries, I should mention something about the conduct of the witnesses who gave evidence from South Africa. Early in the father’s cross examination, it was necessary to separate the father from his South African solicitor because the solicitor was whispering suggested answers to the father. Later, it was necessary to order the father to leave the room from which his mother was giving evidence because he was prompting her to answer in a particular way. It is clear that evidence from overseas is expensive to obtain and that time is of the essence. Time was wasted as a consequence of this misbehaviour.
In future proceedings of this nature, the parties (who will invariably include the State Central Authority) should inform their witnesses well in advance of what is proper behaviour by them and those who will sit near the witness when the witness gives evidence. To do so will save time, money and embarrassment. I am prepared to assume that this misbehaviour was innocent. However, the fact that it occurred demonstrates the necessity for the court to require evidence to be given audio visually because, here, the prompting was detectable more by observation within the witness’ room than by listening.
Rights of custody
Relevantly, Reg. 16 provides that:-
(1) If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A) For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child's removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
It is conceded that the child is less than 16 years old and that, immediately prior to the removal of him from South Africa by the respondent mother on 20 January 2012, he was habitually resident in South Africa.
A finding as to rights of custody is a jurisdictional finding. Unless I am positively persuaded that the left behind parent had those rights immediately before the mother’s removal of the child to Australia, the Regulations (and through them, the provisions of the 1980 Convention) have no application to this case and the applicant’s application for return must fail.
Regulation 4(2) defines rights of custody so as include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child. The rights of custody may arise by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under a law in force in Australia or the Republic of South Africa[1].
[1] Reg. 4(3)
There are a number of decisions which identify the process for this court to determine whether the left behind parent had the requisite right of custody. These include the opinion of Baroness Hale of Richmond, with whom all other members of the court agreed, in In re D (a child) (abduction; custody rights) [2007] 1 ALL ER 783 at [39] and the judgment of Ward LJ (with whom Mantell LJ and Beldam LJ agreed) in Re V-B (Minors) [1999] EWCA Civ 1013. There is the decision of Finn J in Wenceslas & Director General, Department of Community Services [2007] FamCA 398 [22] – [23] with whom, the other members of the Full Court did not disagree on this point and of which the plurality of the High Court, on final appeal, approved in MW v Director-General, Department of Community Services [2008] HCA 12. It is a three step process:-
a)First, to establish on the evidence what rights the father had in relation to the child under South African law immediately prior to the child’s removal to Australia on 20 January 2012;
b)Second, to resolve according to Australian law whether those rights amount to rights of custody within the meaning of Reg. 4;
c)Third, to determine whether or not the removal of the child was in breach of the rights of custody including whether the child’s father was actually exercising the rights of custody or would have exercised them but for the removal of the child.
Does the requesting parent have rights of custody under South African law?
It appears to be common ground that:-
a)the mother and father met in 2001;
b)the mother and father never married;
c)the father is the child’s biological father and is recognised by the mother and the child accordingly although the mother thinks that the father was not functional as a father;
d)the father is not noted on the child’s birth certificate as his biological father;
e)the father had some face to face access with the child prior to the child being removed from South Africa. The mother says that this was sporadic and unsatisfactory; however she does agree that the child spent two weeks with the father in December 2011;
f)the respondent removed the child from South Africa without the father’s consent or knowledge on or about 20 January 2012;
g)the child entered Australia on 21 January 2012 and has remained here since;
h)immediately prior to the respondent’s removal of the child from South Africa, the child was habitually resident in South Africa;
i)there were no parenting orders or proceedings extant in either country at the time of the child’s removal.
19.There is agreement between the parties as to the applicable statutory provisions in South Africa.
Section 21 of the Children’s Act 2005 (“the South African legislation”) provides as follows:-
Parental responsibilities and rights of unmarried fathers.
21. (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child –
(a) if at the time of the child’s birth he is living with the mother in a permanent life partnership; or
(b) if he, regardless of whether he has lived or is living with the mother –
(i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child.
(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1)(a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.
If I was satisfied that at the time of the child’s birth (in March 2003), the parents were living in a permanent life partnership within the meaning of s 21(1)(a), the father would have full parental responsibilities and rights in respect of the child. There was considerable evidence around this issue and direct conflict as to the periods during which the father and the mother lived together at the one address. However, ultimately, even the applicant State Central Authority conceded that there was insufficient evidence of the nature of any period cohabitation for me to be satisfied that the requirements of s 21(1)(a) have been met. That is, for the indeterminate periods during which the parents lived at the same address or otherwise, I could not be satisfied that they were conducting themselves in a permanent life partnership. Clearly, the father does not qualify under s 21(1)(a).
There are three limbs to s 21(1)(b). In the course of submissions, I was referred to the South African decision of Desai J sitting in the Western Cape High Court, Cape Town in the matter of Steadman v Landman (22994/2010) [2010] ZAWCHC 618. There his Honour was asked to make a determination, pursuant to the equivalent of Article 15 of the 1980 Convention as to whether a removal was wrongful. In so doing his Honour discussed s 21(1)(b) in the following terms:-
[…]I deal with the rights and responsibilities of the biological parents of a minor child as set out in the Children’s Act. Certain sections of the act became effective on 1 July 2007 and the remaining sections of the act on 1 April 2010. The entire act accordingly had the force of law on 20 May 2010, the date on which Allegra was removed from South Africa by the respondent.
As already indicated elsewhere in this judgment, at the time of Allegra’s birth her biological parents were not living together in a permanent life partnership as envisaged by Section 21(1)(a).
Such rights as the applicant may have had on 2 May 2010 were thus derived from Section 21(1)(b)(i) to (iii). The applicant must meet all these requirements to qualify for automatic parental responsibilities in a minor. […]
It seems that Section 21 is based on the premise that, provided the child’s unmarried father meets certain requirements, he acquires exactly the same parental responsibilities and rights as the child’s mother and a married father in terms of Section 20.
I accept that the three limbs of s 21(1)(b) must be read cumulatively.
Has the father consented to be identified as the child’s father?
In the context of s 21 (1)(b)(i), the application contemplated by Section 26 is an application by the father for an amendment to the child’s birth certificate to identify himself as the child’s father or to a court for an order confirming the father’s paternity of the child in the event that the mother refuses to consent to the birth certificate being amended, is incompetent, cannot be located or is deceased. It does not apply in this case. Similarly, the father has not paid damages in terms of customary law. Therefore, in order to satisfy the first limb of s21(1)(b), I must be satisfied that the father “consents to be identified” as the child’s father.
It was submitted by the respondent mother that the three categories of acknowledgement described in s 21(1)(b)(i) must be read ejusdem generis so that any consent by the father to be identified must be as part of a formal, if not, legal or quasi legal process. Counsel for the applicant State Central Authority submitted that the consent could be informal and implied as well as express. It was conceded that counsel could not locate any formal procedure within the relevant or related legislation that required the father to consent to be identified as the child’s father. Apparently there was no assistance to be obtained from the parliamentary debates or the South African equivalent of our Explanatory Memoranda. No submissions dealt with the admissibility of extrinsic material to assist in the ascertainment of the meaning of “consents to be identified …as the child’s father” in my interpretation of South African legislation but I was informed that Counsel has researched the matter.
I propose to give the words “consents to be identified …as the child’s father” the ordinary meaning conveyed by the text of the provision.
I am satisfied that consent can take a number of forms from a positive and proactive step to compliance with the request of another to yielding or acquiescing to an outcome. I do not accept the submission on behalf of the respondent mother that the consent must be formal or as part of a legal or quasi legal process. It can be given informally and passively.
It was conceded by counsel for the respondent mother and counsel for the independent children’s lawyer that, if I find (as I do) that the consent need not be part of a formal process, the father had informally consented to be identified as the child’s father. It is a sensible concession to have made.
The father’s direct evidence in relation to his consent to be identified as the child’s father related primarily to his belief that he was on the child’s birth certificate and that the child’s surname was ‘A’. While the father had alleged in his affidavit evidence that the child’s birth certificate had nominated him as the father and that the mother had then deleted his name from the registration of birth, the father agreed in cross examination that he had not signed nor completed the child’s birth certificate, that he never signed a declaration that, although he was not married to the mother, he was the child’s father, nor had he obtained a copy of the birth certificate for any reason. The father’s oral evidence was that he didn’t know that he was not registered as the child’s father until the child started crèche at about three years of age, under the name of D Young. The mother agreed with this proposition in her evidence.
The mother gave evidence that she notified the father that the child’s surname would be ‘Young’ within two weeks of his birth, and that the father did not raise any objection. However the mother agreed that the child’s family name on his baptism certificate was ‘A’ because the father had requested that be the case and she completed the form in accordance with his request.
The father consented to be identified as the child’s father within his family and his community and to the world at large. He did so in many ways including by association (spending time) with the child, by attending the child’s Baptism when he sought to be identified as the child’s father by the Church and within his faith and by payment of maintenance (as I will shortly describe). I find that s21(1)(b)(i) is satisfied
Has the father made a contribution to the upbringing of the child?
Next, I must be satisfied that the father has contributed or has attempted in good faith to contribute to the child’s upbringing for a reasonable period (S21(1)(b)(ii)).
AS was observed by Desai J in the South African case of Steadman v Landman[2]:-
In the Commentary on the Children’s Act, CJ Dowell and AM Skelton, the authors comments that “where a father has contributed to a child’s upbringing for a reasonable period it’s not a straight forward matter, For the point at which a period becomes reasonable is a relative matter on which the child’s parents’ view may differ widely.”
[…] Upbringing is described in the Concise Oxford Dictionary as:-
“The treatment and instruction received from one’s parents through childhood”
[2] Op cit
Each party adduced evidence extensively on the father’s involvement in the child’s life.
The father’s evidence is that he and the mother were in a stable relationship when the child was born, were residing together with the mother’s parents in their home at Johannesburg and shortly, or after the child’s birth moved to reside with his parents. The father’s evidence is that the couple remained living at his parents’ home “for quite a while” or for two years until “our relationship was not going very well and it was a mutual agreement between the two of us to go our separate ways. [The mother] moved out of my parent’s (sic) home and back into her parent’s (sic) home.”
The mother denies that she and the father were residing together in a permanent life partnership at the time of the child’s birth. The mother deposes that she and the father had a relationship of only eight months duration and “the father and I separated when I was approximately six months pregnant with [the child]. From that time my children and myself lived with my parents.” She deposes that the father was “denying paternity” when the child was born.
The mother denies any resumption of a relationship with the father after the child’s birth and deposes to moving out of her parents’ home, with the child, two or three weeks after the child was born because the father had threatened her in a chemist shop and she wanted “to stay elsewhere where my kids and I would be safe.”
The mother denies that “the father was involved in [the child’s] life”. She deposes that the father had one weekend with the child when the child was aged two to three years but was returned injured and that “when [the child] was about four years old the Father spent some unsupervised time with him”. The father’s evidence is to the effect that he was seeing the child perhaps daily but, in any event, very frequently and on an unsupervised basis. The father’s evidence is that he last saw the child, face to face, on 4 January 2012 after he returned the child from a two week vacation (access visit) and that he last spoke to the child by telephone on 20 January 2012. The mother agrees that the child spent two weeks with the father in December 2011. She deposes “I agreed to let [the child] go because he father’s mother…had said she was going to be there to look after [the child]. I later found out that was not true.”
The father, his mother, his girl friend and a previous landlord were cross examined. The mother was also cross examined. Apart from the landlord, whose evidence really went to s 21(1)(a), all of the evidence was significant. However, the evidence of the father and mother was most significant. No one sought to cross examine the author of the reg. 26 report notwithstanding that I indicated that I regarded it as proving that there was a positive relationship between the child and the father which was based on the child having had some experience of the father which, in turn, is relevant to what contribution the father has made to the child’s upbringing.
The father was cross-examined extensively about his involvement in the child’s upbringing.
There was much evidence about whether the father was at the hospital when the child was born. His affidavitory evidence said that he had been present “during the time that the respondent was in labour” but in cross examination he clarified that he and his mother were in the building but not in the suite. The father’s evidence about his contact with the mother during the day of the child’s birth was lacking in specificity and cohesiveness, which causes me to doubt the accuracy of the father’s evidence in that regard. Despite the inconsistencies and lack of clarity in the father’s account of the child’s birth, which sits uneasily with the fact that the child was his first and only child, it is probable that the father, although not present in the birthing suite at the time of birth, did see and hold the child shortly thereafter as is his evidence.
The father also alleged to have been involved in taking the child home from the hospital. The father deposed that the regulations in South Africa in 2003 for the carriage of infants in vehicles stipulated the need for a safety belt and a proper child carrier whereas he said that the mother sat in the back seat with the child in her arms because the maternal grandmother had not purchased a baby seat at that time. The father’s narrative of unsafe and irresponsible transport of the child may possibly have been an honest confession, albeit with little remorse or recognition of his recklessness, however on balance I find it is an improbable version of events which the hospital staff would seem unlikely to have permitted to occur.
The father gave evidence that he, the father’s mother, the mother, the maternal grandparents and the mother’s sister all attended the child’s baptism. He said that after the baptism there was a lunch at his house at which they celebrated and had some snacks. There was a photograph of the mother and father holding the child at the Church on the day of the Baptism. As I have mentioned earlier in these reasons, the mother completed the forms for the ceremony showing the father as the child’s father and the child as having the father’s family name.
The father was cross examined by the independent children’s lawyer about various noteworthy events in the child’s early life, including his transition from breast feeding to formula due to allergies, his first steps, and the first time he rode a bike. The father’s evidence in relation to many of these incidents differed from that of the mother, however this difference in account did not appear to me to be the result of a deliberate untruth by either party, but perhaps more due to the elapse of time, the father’s somewhat casual approach to his evidence, and perhaps reflects somewhat on the father’s level of involvement in parenting decisions in relation to his son at the time. The father agreed that he hadn’t been present for the child’s first steps, nor was he familiar the mother’s account of that occasion. The father alleged that the child drank S26Gold formula for his allergies, while the mother maintained that he drank infasoy, and the father deposed that while he may have ridden a bike at the maternal grandparent’s house, the child also rode a black trike at the father’s house. The father was also cross-examined in relation to his taking the child to crèche, and it was put to the father that the employee who had attested to recognising the father dropping the child at the crèche had not worked at the crèche at the time that the child attended there. The father agreed that he did not recognise that woman.
The father’s evidence was that from the time the child was two years old he would see the child four times a week, and just after his third birthday in March, he began seeing him also every second weekend.
Significant evidence of the father’s involvement in the child’s life, which evidence the mother ultimately did not appear to dispute, was that the father has, in the last few years, taken the child on a number of holidays. The father described that he had taken his son to Sun City for five days in March 2011, to Emerald Casino and Resort for three or four days in October 2011, to another destination for the Easter Weekend in April 2011 for approximately six days, and that he took him to Umhlanga for a two week holiday from December 2011 to early January 2012. The majority of these holiday destinations had casinos, and it was unclear whether the hotels in which the father stayed at the various locations, particularly in Sun City and Emerald Casino and Resort, were connected to the casino complex. The father’s evidence was that, during these holidays, he only once played poker, which occasion was at Emerald Casino and Resort, and that he did not enter the casino at Sun City. Despite that there were casinos at the holiday locations, I am satisfied that these holidays represent some substantial time spent between the child and his father. Counsel for the independent children’s lawyer did point out some inconsistency in the father’s claim in his first affidavit that he spent “a few days” with the child in the holidays, but in his application to the State Central Authority he had claimed to spend 50 per cent of holidays, which inconsistency the father attempted to explain away that “a few days” did constitute half of school holidays. I do not find that explanation convincing.
The father’s evidence was that he has spent regular time with the child throughout his life, and that prior to 20 January 2012 the longest he had gone without seeing his son was three weeks to a month. The father alleged that, after separation, he initially saw the child daily and then approximately three to four times a week until the child’s third birthday in March 2006, from when he also spent time with the child every second weekend. The father described his agreement with the mother initially as that he could see the child whenever he wanted. The father deposed that his days with the child were usually Mondays, Wednesdays and Fridays after school. The father’s account of his time with the child lacked some clarity, and appeared at times inconsistent, which suggested to me that it was perhaps an idealised exaggeration of the way the father would like to remember things. The father stated that when the mother was unable to collect the child, he would collect him from school at about two pm or on Wednesdays a bit earlier, take him to his shop, spend the day there, go for lunch, which might be Chicken Licken as the child liked chicken, and that they would watch some movies and talk, returning him to the mother at about five pm. In relation to that evidence I do not doubt, for example, that the father has spent after school time with the child, going to Chicken Licken and the like on occasion, however I am not convinced that this was as regular an occurrence as the father stated. The father’s evidence was that on Saturdays he had work, so the child would come with him to work, play around, maybe go to a movie at the shopping centre, spend time together, and have lunches.
Returning to this topic later in cross examination, the father was asked about the things that he would do with the child, and in particular, why he had made no mention of soccer in his affidavit material when the child had soccer practice on Mondays and Wednesdays. The father’s evidence was that he often had work in the afternoons and Saturday mornings when soccer was on, and that the maternal grandfather might take the child. He said that he didn’t know the coach’s name, but he was an “Indian gentleman” and that he had paid 800 ZAR for the child’s soccer and bought him “twenty” soccer balls. The father claimed to have been to three or four of the child’s games, but when it was put to him that he had only been to one and had spent the whole time in the bar, the father immediately recognised the occasion, stating that he had had to go to the bar to get cold drinks for everyone. When asked what position the child had played, the father said that he was a defence or striker, and when counsel for the independent children’s lawyer put to the father that the child played right wing, the father said that he was not a big soccer fan, but that he had learnt a little bit about it. I do not doubt that the father has had some involvement in the child’s soccer, however I am not convinced that the father has had the extent of involvement which he claims. Given that the father does not seem to have had a high level of involvement in the child’s soccer, and given that soccer often occurred on days the father claimed to spend with the child, I cannot be satisfied that the father spent the extent of time that he claims with the child on Mondays, Wednesdays and Saturdays of every week or even the majority of weeks.
The father was also cross-examined in relation to his allegation that he had been denied involvement in the child’s schooling, and the father conceded that nothing had prevented him from attending the child’s school and obtaining copies of reports and the like, but that he had seen the child’s schooling as being the mother’s responsibility and had trusted her with it. The father indicated that during the period that he was paying 2000 ZAR child support per month, his impression was that 500 ZAR was going to schooling, and the father expressed surprise when it was put to him that the child was on a full subsidy at school. The father also had difficulty identifying the year in which the child started primary school, suggesting 2006 and then 2007 before agreeing with the independent children’s lawyer that it had been in 2010.
The paternal grandmother, Mrs A, also gave evidence via video link in relation to the father’s contribution to the child’s upbringing. She explained that her affidavit had been written out by a police officer, as her own hands shook due to medication. I am satisfied that the paternal grandmother in her evidence, did not deliberately attempt to mislead the court. Her evidence accorded with that of her son, and to that extent I bear in mind that it is possible that, through exposure to her son and his account of his history with the child, the paternal grandmother’s recollection of events may have been unwittingly coloured by her son’s perspective.
The paternal grandmother’s evidence with regard to her and the father’s presence shortly after the child’s birth was convincing. Mrs A said that her view of the agreement between the mother and father about the father’s contact with the child after separation (when the child was two years old) was that the father accepted that he should pay some maintenance for the child. Her evidence was that, straight after separation, the father saw the child approximately three times a week and on a second weekend, during which time the father was still living with the maternal grandparents and the child would come to her house “all the time.” As with the father, I suspect that this recollection of the time spent between the child and the father, and the time which the child spent at the paternal grandmother’s house, may have an element of ‘wistful thinking’.
The paternal grandmother said that in 2008 the father moved out into a townhouse, and she sold the family home and also moved into a townhouse. Her evidence was that the father used to bring the child to her on a Saturday or Sunday evening and that she would take him home or the father would collect him the next morning. The mother gave evidence that she also has a granddaughter, by her son Mr G A.
Ms C is the father’s current partner. They have been together for approximately two years, and she also gave evidence by video link in relation to the father’s contribution to the child’s upbringing. She works as a beautician in South Africa. Ms C’s evidence, generally, accorded with that of the father. Unlike the father and his mother, whose evidence appeared somewhat exaggerated rather than deliberately misleading, I gained the impression from Ms C that, at times, she consciously tailored her evidence to accord with what she believed to be the father’s view, and what she believed would be best for the father’s case.
Ms C’s evidence in relation to the father and his time with the child was vague and inconsistent. Her evidence was that the father would pick the child up every Monday, Wednesday and Friday, usually at 2pm, and that he would come to them every second weekend. When asked what the father and the child did together during the week, Ms C stated that the child used to come to the shop, they used to watch movies and play board games, the child would play with his cousin and she used to take the child to the movies if the father was working. While she initially said that she had been to soccer “quite a few times,” on clarification her evidence was that she had been five or six times over the two years of the relationship.
Ms C said that the father used to drop the child off at his mother’s house after work at about 5 or 5.30pm. She gave evidence that the father would also drop the child off at soccer practice about twice a week, and that she knew that they were going to soccer because the father used to phone her to tell her. When asked why the father would phone to tell her that, Ms C responded that the father would normally pick her up from work at 5pm. When asked how the father drove the child home at about 5pm and also picked her up at 5pm she said that when the child was with the father he would drop him off and then come to fetch her when he didn’t have soccer practice. When it was suggested that soccer practice concluded at 6pm, Ms C said that she sometimes used to phone her parents to come and pick her up. The inconsistencies in Ms C’s evidence with regard to the time spent between the father and the child left me with the impression that she was attempting to give evidence not of the way that she remembered so much as to accord with what she believed to be the father’s position.
Ms C’s evidence was that she started to keep company with the father at the start of 2011. In March 2011 and again on the Easter weekend in April she went on holiday with him and the child to Sun City, that in October they went to Emerald Casino and Resort, and that they also went on a holiday in December. In relation to the trip to Sun City in March 2011 her evidence was that the father did not go into the casino at any time and spent the whole holiday with her and the child.
When asked about the contents of her affidavit, Ms C stated that she did not discuss with the father what to put before she wrote it out, and when asked how she knew to write, for example, that it was important to put in information about the mother’s expressed intention to emigrate to Australia, she said that she wrote the affidavit herself, and agreed that she came to her own conclusion that the information about the conversation with the mother about emigration was relevant to the proceedings, and at no time discussed the contents of the affidavit with the father. I am not convinced that, with no guidance from the father or any external party, Ms C wrote her affidavit and knew which would be the relevant facts to this proceeding which she ought to include.
The mother gave evidence by affidavit and viva voce and was cross examined. Her contention is that the father had not been significantly involved in the child’s life nor contributed substantially to his upbringing.
The mother’s evidence was that the father had not been present at the child’s birth, and neither was his mother, and that her last contact with the father prior to the child’s birth had been on 29 March 2003 when he had called her home, swearing and ranting, and the next contact she had with the father after the birth was approximately two weeks later, when the father came to her house under the influence of alcohol, struck her on the face, and met the child for the first time.
The mother’s evidence was that she broke up with the father when she was “plus minus” six months pregnant, in October, that he had been physically and mentally abusive and that she had had to ‘escape’ from his mother’s house one day when both the father and the father’s mother were out.
The mother’s evidence was that her next contact with the father was in November when he came to her house on the pretext of an apology for his abusive behaviour, in particular, striking her head, although in the interim he had called her and also parked outside her house and the like.
The mother recounted a further incident when she was eight months pregnant when she saw the father at a restaurant café, ‘Z’ and he coerced her into leaving with him, although she had come with her sister.
The mother’s evidence was that after the child’s birth she never lived with the father, nor spent the night at the father’s mother’s house, nor ever had sexual intercourse with the father. Her evidence was that while she accepted that Mr L had been the owner of the father’s mother’s house, he had not owned it at the time when she was living there, which, on her evidence, was prior to the child’s birth.
The mother’s evidence was that the father’s only involvement in the child playing soccer was his presence at one game, which he spent in the bar.
The mother indicated that she felt that the child loved his father, and that the father appeared to have some insight into the child’s personality which suggested a degree of emotional connection. The mother further agreed that she would be amenable to the father now contacting the child via Skype each week but that she had not done anything in the eight or so months since she removed the child from South Africa. When it was put to the mother that the child had reported positively about his father in the Regulation 26 report, the mother struggled and hesitated to agree with the child’s positive perception of his father because she felt that the child was focusing on the few right things the father had done, when the father had also done a lot of bad things to her. When it was later put to the mother that the child had, in the regulation 26 report, indicated that he loved and missed his father, the mother suggested that the child may have said that only because he had been asked about his father. The mother went on to describe that the child’s father “let him down” “frequently” which she elaborated to be two or three times per month, by, for example, saying he would pick up the child on one day but actually coming on the following day. When it was then put to the mother that this suggested that the father must be thus having some contact with the child at least two to three times per month, the mother said that this was during a “good” period of contact and that sometimes the father “let [the child] down” by not spending time with him at all.
When it was first put to the mother that, in the regulation 26 report, all three children, D, T and J, had reported that in south Africa D saw his father once a month, the mother stated that this was untrue, postulating first that perhaps one child suggested that time and the others agreed, or that perhaps the children were basing it on a ‘good’ period of contact. When the mother was later asked how often the child saw his father in 2011, she said it was approximately once a month and when asked to account for how this differed to her earlier answer, the mother said that previously she had been taking into account contact over the whole of the child’s life. The mother did not give evidence impressively on this point.
The mother maintained that she had told the father that she intended to move to Australia with the child in a conversation in July 2011, but agreed that she had not told the father that she had got a transfer card from the child’s school, or that she was preparing to depart. Her evidence was that “truthfully” she didn’t want any complications and agreed that she felt that if she did not give details of her departure, such as the date of the flight, intended address in Australia and the like, it was more likely that her departure would go smoothly. Her evidence in this regard belies her assertion that the father had little or nothing to do with the child. When the mother was asked how the child must have felt going on his last two week holiday with his father while keeping the ‘secret’ that he was about to move to Australia, the mother maintained that it was not a ‘secret’ although she agreed that the child was aware of the parental conflict and may not have told Dad because he was aware that it would stoke that conflict. The mother suggested that she and the child were planning to visit South Africa next year, and agreed that the child had never gone twelve months without seeing his father before, but, when asked how she thought the child would now cope with a twelve month absence from his father, stated that she hadn’t given it much thought because the child’s bond with his father didn’t seem to be particularly close and he never “pined” after him.
The mother agreed that she had sent a message to the father in April 2012 denigrating the father’s mother. However, the mother agreed that nothing had happened to alter her view of the father’s mother between the time when she permitted the child to go on a two week holiday with the father and father’s mother (at the father’s mother’s request) in December 2012, and the sending of the email then denigrating the father’s mother. Despite initial demurrer, the mother agreed with the holidays which the father claimed to have spent with the child.
The mother accepted that in a second message, sent from the father to her in February 2012 (after the child had been in Australia for a month) requesting telephone contact with the child, that the father had been begging for contact and that there was no reason why communication had not take place. Belatedly but with apparent self justification she said that the father was often abusive to her on the phone. The email communication from the mother to the father included messages from the mother in profane and abusive terms to the father such that I question whether the mother’s failure to facilitate any communication between the father and the child is referrable to her having genuinely taken offence.
The mother’s evidence was that, on arrival in Australia, her efforts to provide for the child to maintain contact with his father extended to sending the father a contact telephone number via SMS. Her evidence was that in the first two weeks in Australia the child did not have contact with his father, and that she did not discuss contact with his father with the child on arrival because the child didn’t bring it up and the mother thought that if it was bothering the child or if he missed his dad or wanted to speak to him then he would bring it up.
My impression of the mother during this hearing was that she has negligible ability to recognise the child’s need to have a relationship with the father if it conflicts with what she wants to achieve including, for instance, to relocate to Australia. The mother had not been discommoded by the father maintaining an active important relationship with the child in South Africa because it did not impinge on anything she wanted to achieve there. Having regard to all of the evidence, I am satisfied that the child saw the father frequently although not as frequently as the father says.
I do not make adverse findings against either the mother or father in relation to credit. By the same token, I do not think that either gave evidence which was entirely accurate. In short, the father exaggerated his involvement in the child’s day to day life and the mother undervalued and underestimated it. The father’s evidence in relation to having made a contribution to the child’s upbringing was, in my view, imbued with a measure of wistful thinking. I am not convinced that the father has spent the extent of time with the child that he claims. Nevertheless, I am satisfied that the father has had a significant degree of contact and involvement with the child throughout his life and much more than the mother was prepared to admit in her affidavit evidence.
I also have regard to the reg. 26 report. The report clearly indicates that the child has formed a significant attachment with his father. This attachment is acknowledged by the mother in paragraph 37 of the Report where the Mother is reported as having “acknowledged that ‘[D] loves his dad’.” Elsewhere in the report (para. 16) the relationship between the child and his father, as appreciated by the child, is described in positive terms:-
In most respects [the child] spoke very positively about his relationship with his father. [The child] stated that he loves his father and he had ‘wanted to spend more time with him’.
It appears clear that, regardless of any shortcomings that there may have been in the behaviour of the father towards the child, a positive bond between father and son has been established in the perception of the child. The establishment of a loving bond between father and son (which has persisted in the child through a lengthy separation from his father) must, I think, be regarded as a meaningful contribution to the child’s upbringing. I am satisfied that, notwithstanding that the bond was established in circumstances where the father’s actions in other respects may have been less than ideal, the bond is established and that is a meaningful contribution to the child’s emotional wellbeing worthy of consideration in the context of s 21(1)(b)(ii).
I am satisfied that the father has played a meaningful role in the child’s life and, in particular, that the father has contributed positively to the child’s upbringing for a reasonable period as contemplated by s 21(1)(b)(ii) of the South African legislation.
Has the father contributed to the child’s maintenance?
Next, the applicant State Central Authority submits that I can be satisfied that the father has contributed or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child within the meaning of s 21(1)(b)(iii) of the South African legislation.
The father gave evidence that he had voluntarily paid maintenance for the child from shortly after separation, which maintenance he alleged incrementally increased over the years.
The father’s evidence was that when the child was born in 2003 he worked as a full time salesman and store manager earning 10,000 ZAR per month. The father said that from approximately one month prior to the child’s birth he and the mother were living with the maternal grandmother and thus didn’t pay any rent or board, but that he contributed to paying expenses for the child, and also supported the mother, who to his knowledge was not receiving any form of government assistance, and neither was he.
The father’s evidence was that in 2005 he started his own business, and earned initially about 10-12,000 ZAR per month which increased over time. At that time he alleged the parties were still living with the paternal grandmother, and, on separation, the mother moved to live with her mother. Of course, the mother denies that they were living together at all. According to the father, the parties arrived at a mutual agreement that he would start to pay some maintenance for the child, but, as he was still sleeping over with the child and the mother on some nights, maintenance payments did not start immediately.
The father’s evidence is that in June 2005 he started paying approximately 500 ZAR per month, which is what the mother and he had agreed to. To provide some context for this sum, the father’s evidence was that a tin of S26 formula cost 40 ZAR for a small tin and 80 ZAR for a big tin, and nappies were about 90, 120 or 179 ZAR depending on the size of the bag. Further evidence revealed that the rent on the paternal grandmother’s four bedroom home, which had two cottages annexed to the back, was 3000 ZAR per month.
The father’s evidence was that in 2006 his maintenance payments increased to 1000 ZAR by agreement with the mother. In 2007 the father’s evidence is that maintenance payments further increased to 1,500 ZAR per month by mutual agreement. The father deposes that he continued to pay maintenance until December 2011 from separation in 2005, missing maybe one or two months, and, in addition to maintenance, buying things for the child that he needed, such as clothing, so that the father was always “ahead” of his obligation.
The father said that he kept receipts and invoices to demonstrate to the mother that he was supporting the child in case they went to court, and to prove that he was the child’s father. His evidence was further that the mother would do “spiteful” things to him and keep the child away from him if he didn’t pay. When it was put to the father that his receipts did not extend to 2011, the father stated that he had too many documents to include in his evidence, so he used only one from each month, and further that in 2011 the mother refused to give him her account number, forcing him to make payments in cash, for which she would not give him a receipt, and that if he didn’t pay she threatened that she would not permit him to see his son. Returning to the issue of maintenance payments later in cross examination, it was put to the father by counsel for the mother that he hadn’t regularly paid maintenance since 2009 or early 2010, which the father denied.
In relation to child support, the father’s evidence was that from 2007 to 2012 he was self employed, with his current income at approximately 25,000 rand, his income in 2011 approximately 20,000 rand, his income in 2010 and 2009 approximately 18,000 rand, and his income in 2008 and 2007 approximately 15,000 rand.
The mother also gave evidence in relation to the father’s contributions to the child’s maintenance, in which she deposed that while the father made some contributions they were neither regular nor of sufficient quantity.
The mother’s evidence was that during her time living with the father’s mother, prior to the child’s birth, that she wasn’t working but was living on her savings and the father contributed to the rent on both of their behalf and bought all the groceries including for her and her children.
The mother gave evidence that after the child’s birth the father “seldom” contributed to the child’s medical bills. She deposed that the child would visit the doctors two to three times a week, and that the father would cover a bill once every two weeks and that if the father paid a bill then he would then not pay maintenance. This evidence sits somewhat uncomfortably with the mother’s evidence that the father was not paying maintenance for the child until 2005, in which year the child turned two, but that the mother’s evidence was that the child was very unwell at birth. It is unclear whether the child, at age two, was still attending the doctor two to three times each week.
The mother’s evidence was that she last received maintenance from the father in 2010, and that she received no payments or payments in kind in 2011 via bank transfer or cash or otherwise. The mother said that she still let the father see the child, despite his not paying maintenance, in order to keep the peace, and that she let the father take the child on a holiday for two weeks in 2011 because the father’s mother asked and she had been unwell. The mother’s evidence was that the child had never previously nor since spent two weeks with the father, but had perhaps spent close to a week before.
The mother disputed that all the amounts claimed to be paid by the father in his receipts had in fact been paid.
The mother discussed her work history, having worked prior to the child’s birth as a communications manager earning around 15,000 ZAR per month. She stopped working for the child’s birth, and returned to work in 2005 as a PA but could not remember her salary. Her evidence was that in 2006 she accepted a salary decrease to work for 10,000 ZAR per month as a PA receptionist to the legal representative of a company. From 2006 to 2008 she worked for …, earning approximately 10,000 ZAR monthly, before venturing into her own business from 2008 to 2009, which venture failed. She then worked for her father, who payed her a wage supplemented with free boarding and food and the like.
The mother’s evidence was that she had nominated the initial quantum of child support paid by the father at 500 ZAR per month, and that she did not ask that it increase yearly, but the father increased the amount voluntarily, she presumed, because child support rates get increased yearly. Her oral evidence was that she had asked numerous times for the child support to further increase, which allegation is not found in her written material. The mother also receives child support from the father of her two older children, not by court order, which sum, she alleged, had reached a plateaux at 2000 ZAR per child per month. The mother’s evidence was that she was aware, at the time of the child’s birth, that there was a maintenance court in South Africa, but that she did not bring any claims to that court at that time or since.
The mother agreed that the father had paid the pharmacy accounts in respect of which he provided receipts to the court.
Helpfully, the independent children’s lawyer analysed the copy receipts relied upon by the father. Based on that information and other evidence in the case, it was submitted that I ought to be satisfied that the father had made a contribution towards the expenses in connection with the maintenance of the child. Counsel for the mother did not make submissions to the contrary. That was sensible having regard to the evidence.
I am satisfied that that the father has contributed or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child within the meaning of s 21(1)(b)(iii) of the South African legislation.
I am satisfied that the father had acquired full parental responsibilities and rights in respect of the child by virtue of s 21(1)(b) prior to the mother’s removal of the child from South Africa.
Section 18(2) of the South African legislation provides, inter alia, that parental responsibility includes the right to care for and to maintain contact with the child. Section 18(3) of the South African legislation provides that a parent who acts as guardian of a child must give or refuse consent required by law to, inter alia, consent to the child’s departure or removal from the Republic of South Africa and to the child’s application for a passport. Section 18(3) provides that, unless a competent court otherwise orders, the consent of all guardians of a child is necessary in respect of the child’s marriage, adoption, disposition of property and to the child’s departure or removal from the Republic and to the child’s application for a passport. It appears that a guardian has a “right of veto”[3] in relation to the departure of the child from the Republic of South Africa.
[3] See M.W. v. Director-General, Department of Community Services [2008] HCA 12
It was conceded that if the father has full parental rights in South Africa (which I have found to be the case), then by virtue of s18(3) of the South African legislation those parental rights equate to a right of custody within the meaning of Article 5 of the 1980 Convention according to South African law. I am satisfied that is the case.
Do the parental rights under South African law amount to rights of custody within the meaning of Reg. 4?
I am satisfied that, under South African law, the father has the right to determine the child’s place of residence by virtue of being required to give or refuse consent to, inter alia, the child’s departure or removal from the Republic of South Africa and to the child’s application for a passport.
There was no dispute between the parties that the full parental rights and responsibilities pursuant to s 21(1) augmented by s 18(3) of the South African legislation amount to rights of custody within the meaning of reg. 4 of the Regulations.
I am satisfied that the father had rights of custody with respect to the child within the meaning of reg. 4 immediately prior to the removal of the child to Australia by his mother in January 2012.
Whether the removal of the child was in breach of the rights of custody
The third and final step is to determine whether the removal of the child to Australia was in breach of the father’s rights of custody including whether the child’s father was actually exercising the rights of custody or would have exercised them but for the removal of the child. There was no submission put on behalf of the mother to the contrary.
I am satisfied that the removal was in breach of the father’s rights of custody in that he did not consent, and would not have consented, to the removal. The removal was wholly inconsistent with the father’s rights.
In the formal response the mother claimed that, if the father had rights of custody (which I have found to be the case) then he was not exercising those rights at the time of the removal. That contention was not pursued at this hearing. In Director General, Department of Community Services v Crowe (1996) FLC 92-717 our Full Court held that, notwithstanding that a left behind mother had placed the one year old child with the paternal grandparents in New Zealand when she was suffering depression and knew that they were taking the child to Australia for a holiday, she was still exercising rights of custody over the child within the meaning of the Regulations at the time of the retention of the child in Australia. Further, that the left behind mother would have continued to exercise her rights of custody but for the retention of the child by the paternal grandparents in Australia contrary to her permission. It was held that the grandparents’ retention of the child in Australia interfered with exercise by the mother of her rights of custody and therefore, there was a retention “in breach of rights of custody”.
I am satisfied that was exercising his rights of custody at the time of the child’s removal and would have continued to do so but for the mother’s removal.
Conclusion
For the above reasons I am satisfied that the requesting parent, Mr A, has rights of custody in the requisite sense. It follows that the mother’s removal of the child from South Africa was a wrongful removal within the meaning of r. 16(1A).
The matter will now proceed on the basis of the mother’s contention that exceptions to mandatory return apply to this case.
I certify that the preceding one hundred and five (105) paragraphs and following postscript are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 September 2012.
Associate:
Date: 5 October 2012
POSTSCRIPT The independent children’s lawyer arranged for a mediation for the parents through Victoria Legal Aid. The mediation was conducted by two mediators over two sessions. The first was conducted by Skype for a duration of 3.5 hours. The second session was conducted by telephone for 4 hours. The mediation was free of charge to the parents.
On 12 September 2012, the parties announced their resolution whereby the child would remain in Australia with the mother and travel back to South Africa twice per year to have access with the father. The parents sought further time to investigate the requirements to obtain mirror orders in South Africa to secure the access arrangements to which they agreed.
The parties were helpfully advised by the Hague Network Judge in South Africa, Justice van Heerden, that mirror orders could be obtained.
Immediately upon the application of the State Central Authority being withdrawn, final parenting orders were made in this Court on 18 September 2012 on the mother’s oral application and by consent. The father was self represented in that proceeding and appeared by telephone link. The parties have liberty to apply for any subsequent parenting application to be listed before me urgently for preliminary directions. This is intended to minimise the delays and difficulties which often attend an application by an applicant who resides overseas for enforcement of parenting orders promptly and expeditiously.
The father is in the process of applying for the mirror orders to be made in the High Court in South Africa and the first occasion of access is to take place in December 2012.
The mediation process would not have been available to the parties without an independent children’s lawyer whose other contributions to this case were of great assistance.
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