State Central Authority: Commissioner of Police, South Australia and Philbrook
[2013] FamCA 364
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY: COMMISSIONER OF POLICE, SOUTH AUSTRALIA & PHILBROOK | [2013] FamCA 364 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – application by State Central Authority seeking the enforcement of existing access orders made in France in 2005 concerning a 15 year old child on behalf of the father – where the child lives with the respondent mother in Australia – best interests – application for access dismissed. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CB, 60CC, 60CD, 60CE, 111B, 111CA, 111CW Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 1A, 2, 10, 24, 25, 25A Sch 2 Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children |
| Re G, A Minor (Hague Convention Access) (1993) 1 FLR 669 Director-General, Department of Families, Youth and Community Care v Reissner (1999) FLC 92-862 State Central Authority & Peddar (2008) 219 FLR 273 State Central Authority & Quang (2009) 237 FLR 166 Secretary of the Attorney-General’s Department & McDonald [2013] FamCA 8 |
| APPLICANT: | State Central Authority: Commissioner of Police, South Australia |
| RESPONDENT: | Ms Philbrook |
| FILE NUMBER: | ADC | 1785 | of | 2012 |
| DATE DELIVERED: | 24 May 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 6 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Olsson |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor's Office |
| COUNSEL FOR THE RESPONDENT: | Mr Boehm |
| SOLICITOR FOR THE RESPONDENT: | Women's Legal Service (SA) Inc. |
Orders
The Form 4 Initiating Application filed by the State Central Authority: Commissioner of Police, South Australia on 14 May 2012 is dismissed and removed from the active pending list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority: Commissioner of Police, South Australia & Philbrook 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 ADELAIDE |
FILE NUMBER: ADC 1785 of 2012
| State Central Authority: Commissioner of Police, South Australia |
Applicant
And
| Ms Philbrook |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns the time M, (“the child”) is to spend with her father. The child was born in January 1998. She is 15 years old. The child lives in Adelaide with her mother Ms Philbrook (“the mother”). The mother was born in 1965 and is now 47 years of age.
The child’s father is Mr Han (“the father”). The father lives in France. The father was born in 1948 and is now 64 years of age.
The child’s brother B lives with his mother and sister in Adelaide. He was born in 1991 and is now 21 years of age.
Background
The mother and the father were married in 1989 in France. As previously stated, their first child, B was born in 1991. Their second child, M, was born in January 1998.
The parties were divorced in July 2002. Following separation, the children were to live with their mother and to spend time with their father every second and fourth Saturday at an agreed meeting place by order of the County Court of Tarascon dated 05 July 2002.
Further orders were made by the County Court of Tarascon on 10 June 2003. The Magistrate in charge of Family Affairs increased the time the father was to spend with the children and ordered him to pay periodic child maintenance. The mother was given permission to leave France and visit Australia with the children during the French Summer holidays in 2003.
The mother failed to return to France with the children within the time frame provided for by the orders of 10 June 2003. On 25 March 2004, the County Court of Tarascon made the following orders as summarised below:
7.1Sole parental responsibility for the two children was granted to the father.
7.2The children were to live with the father, with the mother granted “visiting and housing rights.”
7.3The father was no longer required to pay periodic child maintenance.
The mother sought a review of this decision on 18 August 2004. It is unclear whether this process involved a “merits review” style hearing or was more akin to a traditional appeal.
On 16 December 2004, the County Court of Tarascon made the following orders as summarised below:
9.1Equal shared parental responsibility for the children.
9.2The father was to undertake a “psychological examination.”
9.3The children were to remain living with the father while awaiting the results of the “psychological examination.” The children were to live with the mother every Wednesday and on alternate weekends.
The mother was sentenced to three months imprisonment by the Tarascon Court of Justice on 5 April 2005. The sentence was suspended. The charge, kidnapping, related to the mother failing to return to France with the children following their holiday in Australia in 2003.
The “psychological examination” of the father ordered by the County Court of Tarascon on 16 December 2004 was filed in that Court on 20 April 2005.
On 28 June 2005, Magistrate in charge of Family Affairs Marc Juston made the orders as summarised below:
12.1Equal shared parental responsibility for the children.
12.2The mother was allowed to relocate to Australia with the children.
12.3The children were to spend one and a half months with the father in France during the extended school holidays period at the end of each year. The cost of the airfares for the children was to be covered by the mother. The dates of the time the children were to spend with the father in the extended school holidays period were to be chosen by the father in odd years and by the mother in even years.
This judgment was for obvious reasons composed in French. There are two separate English translations of this document on the court file – one is at Annexure “E” of the State Central Authority’s Application initiating proceedings, the other is at Annexure “A” of the mother’s answer and cross-application. The parties agreed at the hearing that the slight differences in word choices between the translations were not significant.
The mother subsequently relocated to Australia with the children in mid 2006.
The mother claims that she attempted to arrange with the father the dates for the children to spend time with him during the extended school holidays period at the end of 2006 shortly after she arrived in Australia. She claims that the father did not answer his telephone despite her repeated attempts to contact him by that method.
Despite this lack of communication, the mother travelled to France during the extended school holidays period at the end of 2006 with the children and stayed for a period of six weeks. The mother attempted to contact the father via telephone once she arrived in France but once again the father did not answer his telephone.
The mother and the father were able to arrange a time for handover to allow the children to spend time with their father in the extended school holidays period at the end of 2007. The handover was to occur at a French airport on 10 December 2007.
The mother claims that the father repeatedly denied that he was the father of the children when the mother presented the children to him at the handover place. Furthermore, the mother asserts that the children did not enjoy their time with the father.
The mother claims that the father would not allow the children to leave the apartment or contact her, and that the children were fed the same meal of pasta with tomato sauce every day.
The mother additionally claims that the father was verbally and physically abusive towards the children. This account is supported by the comments of the children as contained in the Family Report dated 5 March 2013.
The mother sought a review of the travel arrangements from the County Court of Tarascon when she was in France during the extended school holidays period at the end of 2007. A reply from a clerk of the Court was received on 18 December 2007 which generally states that the court no longer had jurisdiction over the matter as the mother and children now lived in Australia.
The mother first sought legal assistance in Australia in June 2008. The mother wanted to renegotiate the travel arrangements as she was no longer financially capable of complying with the current arrangements. The mother’s second marriage had recently ended and she was, and continues to be, in receipt of a NewStart Allowance. The mother’s legal representatives sent the father written correspondence on 25 June 2008, 9 October 2008 and 11 December 2008 in an attempt to begin negotiations concerning the travel arrangements.
The mother’s legal representatives received a letter from the father dated 30 November 2008 on 12 December 2008. The letter generally rejects the mother’s request for the travel arrangements to be altered and asks that the children be available for collection by the father in France on 10 December 2008.
The mother’s legal representatives responded to this letter with a letter dated 17 December 2008. It states generally that the mother is financially unable to continue with the current arrangement and that she would welcome any alternative proposals the father may have that would overcome the problem of the cost of travel.
The mother claims that no reply was received from this letter. The mother also claims that the father has made no effort to communicate with her or her children since this time.
The documentation filed by the applicant paints a different picture. The Initiating Application claims that the father “has attempted to trace the mother and the child but did not have their address or their telephone number” and that “The mother has never taken any steps to maintain the link between the father and the child and thus the father has been deprived of the opportunity to see the child grow up.”
The father filed a complaint with the Prosecutor of the Bar of Tarascon sometime in 2009 with regards to the mother’s non-compliance with the orders of the County Court of Tarascon dated 28 June 2005. This entity issued a Notice of Closing of the father’s complaint on 18 June 2009. The Public Prosecutor of Tarascon referred the father’s complaint to the Australian Authorities on 12 August 2010.
An authority granting the Central Authority to act on the father’s behalf was signed by the father on 15 June 2011.
A letter was sent from the French Ministry of Justice to the Australian Central Authority on 18 August 2011. It asks the Australian Central Authority to commence proceedings pursuant to the Convention on Civil Aspects of International Child Abduction which was concluded at The Hague on 25 October 1980 with the purpose of enforcing the child’s time with the father as per the 28 June 2005 orders of the County Court of Tarascon.
The Present Application
The application was filed on 14 May 2012. It was supported by an affidavit of the applicant’s legal representative and Counsel, Ms Olsson. The supporting affidavit states that the Commissioner of Police had been requested by the Commonwealth Central Authority to initiate these proceedings to provide the father with access to the child.
The orders sought by the applicant are:
1.An order that the father, [Mr Han] (“the father”) have access to his daughter, [M] (“the child”), in France as follows:-
1.1That access occurs for one month and a half (6 weeks) during the long school holidays);
1.2That the mother is responsible for the payment of the return airfare for the child;
1.3That the period of the child’s access with the father is to be chosen by the mother in even years and to be chosen by the father in odd years;
1.4Such further or other order(s) as this Honourable Court may deem fit and reasonable.
The orders sought are identical to the orders concerning access to the child as granted by the County Court of Tarascon in France on 28 June 2005. No orders are sought concerning parental responsibility for the child.
The mother filed an answer and cross-application to the applicant’s application on 21 August 2012. The following excerpt appears to encapsulate the final orders sought by the mother:
1.The following are the circumstances in which the rights of access of the father have not been breached or denied by the respondent:
a.That the Mother attempted to contact the father personally and through her solicitor in 2008 to make alternative arrangements regarding access to the children in light of the financial hardships caused by the 28 June 2005 Verdict of the County Court of Tarascon on the Mother.
b.That the father be at liberty to spend time with [the child] in Australia once a year for a maximum of six years and that the cost of facilitating such said travel be borne by the father.
c.Such further or other Orders(s) as this Honourable Court may deem fit and reasonable.
In addition, the interim orders sought by the mother were:
(a)That the provisions of the Verdict dated 28 June 2005 by the County Court of Tarascon, France, with respect to access between the child, [M] (“[the child]”) and the Father [Mr Han] (“the father”) be suspended.
(b)That pursuant to clause 26 of the Family Law (Child Abduction Convention) Regulations in 1986, this Honourable Court direct a family consultant to prepare a report and that the matter be adjourned until the report has been submitted into Court.
(c)Such further or other order(s) as this Honourable Court may deem fit and reasonable.
The outline of case document filed by the mother on 23 April 2013 provided the following amended orders sought:
1That all previous orders including foreign orders with respect to the child [M] born … January 1998 be discharged.
2.That the said child live with the mother and that the mother have sole parental responsibility for the said child.
3.Any other orders as deemed appropriate by this Honourable Court.
The mother abandoned her request for an order that she have sole parental responsibility for the child at the date of the hearing upon my confirming that I was unable to make such an order without the father being named as a party to the action (see generally the judgment of Kent J in Secretary of the Attorney-General’s Department & McDonald [2013] FamCA 8 at [125]).
Procedural History of the Present Application
The parties first appeared before me on 20 July 2012. Counsel were present. I ordered the mother to file and serve documents in response to the applicant’s application and adjourned the matter for further consideration to 11 September 2012.
A further adjournment was granted on 11 September 2012 to allow the applicant more time to respond to the mother’s documents filed in response to the applicant’s application and to give the parties’ time to negotiate with a view to resolving the matter without need for further recourse to the Court.
The matter was adjourned again on 1 November 2012 as the applicant required time to translate a document that had been received from the father which was written in French.
On 12 December 2012, I ordered that a Family Report be prepared pursuant to s 62G of the Family Law Act 1975 (Cth) (see generally the decision of Ellis ACJ, Finn and Chisholm JJ in Director-General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841 at 85,835–85,837 for the admissibility of s 62G reports in proceedings such as these). The report writer was granted access to all of the documents in the court file. Both the mother and the father were ordered to attend all appointments fixed by the report writer, with the father to attend via telephone link from France.
The Family Report, written by Ms C and dated 4 March 2013, was released to the parties and their legal representatives by Registrar Paxton on 5 March 2013. Registrar Paxton made further orders relating to the filing of documents on 30 April 2013.
The Law
Section 111B of the Family Law Act 1975 (Cth) provides for regulations to be made that “make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit under the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980” (“the Child Abduction Convention”).
Such regulations have been enacted in the form of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Child Abduction Regulations”). Regulation 1A provides the purpose of the Child Abduction Regulations as:
1A Purpose
(1) The purpose of these Regulations is to give effect to section 111B of the Act.
(2) These regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)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; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
Article 1 of the Child Abduction Convention provides:
Article 1
The objects of the present Convention are–
ato secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
bto ensure that rights of custody and of access under the law of one Contracting State are effectively represented in the other Contracting States.
Both Australia and France are “convention countries” within the definition provided in Regulations 2 and 10 and Schedule 2 of the Child Abduction Regulations, and have been at all relevant times during these proceedings.
“Child” is defined at Regulation 2 of the Child Abduction Regulations as “a person who has not attained the age of 16 years.”
This application was initiated pursuant to Regulation 24 of the Child Abduction Regulations”). Regulation 24 of the Child Abduction Regulations states:
24Request for access to child in Australia
(1)The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if:
(a)it receives a request from a Central Authority on behalf of a person who claims:
(i) to have rights of access to the child under a law in force in a convention country; and
(ii)that those rights have been breached; and
(b)it is satisfied Regulations 25 and 25A of the Child
(2)`The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention.
(3)A notice under subregulation (2) must:
(a)be sent to the Central Authority that sent the request; and
(b)include the reason for the refusal.
(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.
As an application for access to a child that is in Australia, Regulations 25 and 25A of the Child Abduction Regulations are also applicable:
25Application for access to child in Australia
(1)The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders:
(a)an order specifying with whom a child is to spend time or communicate;
(b)an order for the issue of a warrant mentioned in regulation 31;
(c)any other order that the responsible Central Authority considers appropriate to give effect to the Convention.
(2)If a copy of an application made under subregulation (1) is served on a person:
(a)the person must file an answer, or an answer and a cross‑application, in accordance with Form 4A; and
(b)the responsible Central Authority may file a reply in accordance with Form 4B.
25AOrders
(1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under subregulation 25(1):
(a)make an order of a kind mentioned in that regulation; and
(b)make any other order that the court considers to be appropriate to give effect to the Convention; and
(c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
(2)In determining an application made under subregulations 25(1) seeking an order of the kind mentioned in paragraph 25(1)(a), the court must have regard to the matters set out in section 111CW of the Act if the convention country under the laws of which the person mentioned in paragraph 24(1)(a) claims to have access rights to the child is also a Convention country within the meaning of subsection 111CA(1) of the Act.
(3)The court may make an order under subregulation (1) regardless of:
(a)whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or
(b)if the child was removed to Australia – when that happened; or
(c)whether the child has been wrongfully removed to, or retained in, Australia.
Subregulation 25A(2) of the Child Abduction Regulations refers to the definition of “Convention country” as contained in section 111CA of the Family Law Act 1975 (Cth) (“the Act”). This definition reads “Convention country means a country, other than Australia, for which the Child Protection Convention has entered into force.”
The Child Protection Convention is also defined at section 111CA of the Act. This definition reads “Child Protection Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996, a copy of the English text of which is set out in Schedule 1.”
The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”) was signed by France on 1 April 2003, ratified on 15 October 2010, and entered into force on 1 February 2011.
As France is a Convention country within the meaning of subsection 111CA (1) of the Act, I must have regard to the matters set out in section 111CW of the Act and subregulation 25A(2) of the Child Abduction Regulations. Section 111CW states:
111CWCourt 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 or communicate with.
(2)The court may adjourn the proceedings pending the outcome of a request by a parent of the child to a competent authority of a Convention country for a finding on the suitability of the parent as a person for the child to spend time with or communicate with.
(3)On the application of a parent who is an Australian resident seeking to have, or to continue to have, a child spend time with or communicate with the parent, a court may:
(a)admit evidence; and
(b)make a finding on the suitability of that parent as a person for the child to spend time with or communicate with; and
(c)specify conditions on which the child is to spend time with or communicate with the person.
The provisions of Part VII of the Act are relevant to the extent that they prescribe certain primary and additional considerations when determining the best interests of a child. The most relevant sections are:
Section 60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
Section 60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CB Proceedings to which subdivision applies
(1) This subdivision applies to any proceedings under this Part in which the best interests of the child are the paramount consideration.
…
Section 60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
Section 60CD How the views of a child are expressed
(1)Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child.
(2)The court may inform itself of views expressed by a child:
(a)by having regard to anything contained in a report given to the court under subsection subsection 62G(2); or
(b)by making an order under section 68L for the child’s best interests in the proceedings to be independently represented by a lawyer; or
(c)subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
Note 1: Paragraph (a)—subsection 62G(3A) generally requires the person giving the report to ascertain the child’s views and include those views in the report.
Note 2: Paragraph (b)—paragraph 68LA(5)(b) requires the independent children’s lawyer for the child to ensure that the child’s views are fully put before the court.
Section 60CE Children not required to express views
Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.
The Applicant’s Case
The applicant filed an outline of case document on 7 December 2012 and an outline of argument document on 1 May 2013. The outline of argument document provides that the documents that are being relied upon by the applicant are the Form 4 Application initiating proceedings filed on 14 May 2012 and the affidavit filed by the applicant’s solicitor and counsel on 13 March 2013.
The affidavit annexes two documents which have been translated into English from French. The first document, entitled “Judicial Analysis of [the father’s] Parent Rights”, is authored by the father’s French legal counsel Mr Damien Faupin and dated 25 May 2011. The second document is a response to the mother’s answer and cross-application document from the father.
The applicant contends that the Child Abduction Regulations do not provide a list of relevant factors to be considered when deciding whether to the exercise the Court’s discretion to make orders pursuant to regulations 25 and 25A. The applicants relied on the decision of Justice Bennett in State Central Authority & Peddar (2008) 219 FLR 273 (“Peddar”) in support of this contention. Her Honour states at [26] of this decision:
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.
The applicant also suggests in the outline of argument that the approach taken by Bennett J in Peddar “is the correct approach to be taken in relation to the Hague Convention access application brought by the applicant in this case and that Part VII of the Family Law Act 1975 applies to the application before the court.” To that end, Bennett J in Peddar stated at [32]–[37]:
[32]By contrast, with few exceptions, access cases under the Regulations, arise for consideration in this court after the child has assumed Australia as his/her place of habitual residence. The children concerned are already habitually resident in Australia and are subject to Australian law. In my view, a child in respect of whom the access provisions of the 1980 Convention are appropriately engaged pursuant to the Regulations, should have his or her parenting arrangements determined according to the law which applies to all children in Australia. That is because such children … are now habitually resident in Australia.
…
[36]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.
[37]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.
The applicant also submitted that I “should give due weight and consideration to the access orders which have been made in relation to the child by the French Court.” In support of this contention, the applicant referred to the dicta of Butler-Sloss LJ of the Court of Appeal of England and Wales in Re G, A Minor (Hague Convention Access (1993) 1 FLR 669 at 676 (“Re G”), where Her Ladyship stated:
The existence of the 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.
Justice Bennett referred to this statement in Peddar at [77] as “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)” of the Child Abduction Regulations.
Ms Olsson for the applicant engaged in some examination of the Family Consultant. In response to a line of questioning from Ms Olsson, the Family Consultant stated that the child’s anxiety about spending time with her father would not be mitigated if she travelled with a family member. The Family Consultant also stated that the child’s views about spending time with her father did not appear to be influenced by her mother or her older brother. The Family Consultant agreed that it was not ideal for the child to have no communication with her father, but stated that the child was adamant about no such communication occurring.
Ms Olsson for the applicant then commenced her submissions by referring to documents on the court file as evidencing breach of the existing French orders by the mother, those documents being:
61.1a letter from the father dated 24 October 2011 at Annexure “B” of the applicant’s application initiating proceedings filed 14 May 2012;
61.2a document entitled “Judicial Analysis of [the father’s] Parent Rights” authored by French lawyer Damien Faupin on instructions of the father dated 25 May 2011 at Annexure “JGO 1” of the applicant’s affidavit filed 13 March 2013; and
61.3a letter authored on behalf of the father by a “Local Consumers’ Association” dated 22 September 2012 at Annexure “JGO 2” of the applicant’s affidavit filed 13 March 2013.
Counsel for the applicant then highlighted the factual discrepancies between the chronology of events filed by the applicant and the mother. Ms Olsson asked me to prefer the father’s version of events concerning the children’s time with him in 2007.
Ms Olsson then turned to the written correspondence sent to the father on behalf of the applicant commencing in June 2008 (See Annexures “C–I” of the mother’s answer and cross-application). Ms Olsson contended that the father’s refusal to engage with this correspondence until months later can be attributed to his inability to understand English. Further, Ms Olsson contends that the father was under no obligation to respond to the letters or to negotiate with the mother as there are orders in place.
Counsel for the applicant asked that I place little probative weight on a letter sent by the mother to the County Court of Tarascon asking for the existing orders to be reviewed dated 12 December 2007 (contained at Annexure “B” of the mother’s answer and cross-application) as the response from the County Court of Tarascon was not included in the Annexure.
Ms Olsson noted that the child’s 16th birthday would occur during the period in which she is next required to spend time with the father in France in accordance with the existing orders. The child would cease to be a “child” within the definition of Regulation 2 of the Child Abduction Conventions at this time. Despite this, Ms Olsson suggested that this factor should not lessen the “seriousness” of the application. Ms Olsson did not specify how the child’s attainment of the age of 16 would affect the enforceability of any orders I make arising out of this application.
Ms Olsson confirmed that the applicant contended that the decision of Bennett J in Peddar was applicable to the extent that the best interests of the child are the paramount consideration. However, in reliance on the judgment of Butler-Sloss LJ in Re G (Supra), counsel contended that I must weigh the best interests of the child against the existing orders of the County Court of Tarascon dated 28 June 2005.
The primary order the applicant sought was the enforcement of the existing orders of the County Court of Tarascon. As a fall-back position, the applicant sought orders that would enable communication between the child and the father to resume, or an alternate order for the father to spend time with the child in a manner that avoided the financial stress upon the mother inherent in the current order.
At the conclusion of her submissions, I drew Ms Olsson’s attention to s 111CW of the Act. In response to my questioning as to the effect of this section, Ms Olsson submitted that I should look at the most recent body of knowledge concerning the case as contained in the Family Report dated 4 March 2013 and compare this to the findings of the County Court of Tarascon and the information before them at the time of the 28 June 2005 orders. Ms Olsson submitted that the French court engaged in a “fulsome consideration” of the competency of the mother and father as parents, and concluded that the father was a suitable parent.
The Mother’s Case
The mother’s counsel filed outline of case documents on 10 December 2012 and 23 April 2013. The latter outline of case document provides that the documents that are being relied upon by the mother are Form 4A answer and cross-application filed 21 August 2012, the affidavit of the mother filed 21 August 2012, the outline of case document filed on 10 December 2012, and the Family Report written by Ms C, Family Consultant, and dated 4 March 2013. Further, the mother’s counsel sought to call Ms C as a witness during the oral hearing.
The mother’s counsel also relied on the decision of Bennett J in Peddar in support of a contention that the best interests of the child are the paramount consideration in exercising the discretionary powers in regulations 25 and 25A of the Child Abduction Regulations.
To similar effect, the mother’s counsel referred to the decision of Bennett J in State Central Authority v Quang (2009) 237 FLR 166 (“Quang”) at paragraph [9], in which her Honour stated:
In the matter of State Central Authority v Peddar (2006) 219 FLR 273 I held that whilst the Regulations provided the framework within which the State Central Authority could prosecute and participate in parenting proceedings, the principles for determination of time to be spent with and communication between a child resident in Australia and a parent in another Convention County were the same principles that generally apply to children in Australia. In deciding whether to make a particular parenting order, the best interests of a child is the paramount consideration.
Counsel referred to the dicta of Butler-Sloss LJ in Re G (Supra) as identified by the applicant, but instead “respectfully submitted that the appropriate test to be applied is” the approach of Lindenmayer J in Director-General, Department of Families, Youth and Community Care v Reissner (1999) FLC 92-862 (“Reissner”) at [78] to the extent that it adopts a statement of Eastham J in the 1991 unreported decision of Re C, where Lindemnayer J stated:
Her Honour then said that the 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.”
Butler-Sloss LJ adopts this very statement of Eastham J from the unreported Re C (Supra) decision at page 674 of her judgment in Re G (Supra). Furthermore, the sentence that follows immediately after the extract of the judgment of Butler-Sloss LJ relied upon by the applicant is “I agree with Eastham J in Re C (above) in the passage to which I have already referred.”
In my view, both passages are differently worded embodiments of the same principle, that principle being that the orders in place in the requesting jurisdiction are a relevant consideration, but a consideration that is outweighed by the paramount consideration, that being the best interests of the child.
Mr Boehm also examined the Family Consultant. Mr Boehm asked the Family Consultant to expand on the “grave concerns for [the child’s] physical and emotional safety” she outlined at paragraph [43] of her report. In response, the Family Consultant noted that being ordered to spend time with the father may provoke emotional issues within the child, especially as she would be travelling alone for any future time in France with her father given that her brother is now an adult.
Mr Boehm for the mother submitted that the child is a mature 15-year-old who, with reference to the Family Report, is able to express her views clearly and with detail. Mr Boehm noted that the child has said that she does not wish to spend time with or communicate with her father. He further submitted that these views were not influenced by her mother or older brother as confirmed by the Family Consultant upon examination earlier during the hearing.
Mr Boehm argued that Ms Olsson had not effectively challenged the findings in the Family Report. In particular, Mr Boehm referred to paragraph 43 of the Family Report, which provides:
Given [the child’s] existing fears in relation to her father, along with [B’s] compelling accounts of being repeatedly physically abused by [the father], the writer holds grave concerns for [the child’s] physical and emotional safety should she be court-ordered to spend time with her father, with our without her brother.
Mr Boehm agreed with Ms Olsson concerning the balancing act between the best interests of the child as the paramount consideration and the need to respect the existing orders of the County Court of Tarascon in a manner consistent with the purposes of the Child Abduction Convention.
Mr Boehm contended that it would not be in the child’s best interests to spend time with the father. This contention was supported by the Family Report and the oral evidence given by the Family Consultant on the day of the hearing. Mr Boehm contended, in the words of the Family Consultant, that enforcing the orders of the County Court of Tarascon would force the child to “confront the trigger” of her traumatic memories of her dealings with her father. Ultimately, Mr Boehm asked the Court to place significant weight on the views of the child, consistent with the reasoning of Bennett J in the Peddar decision.
Mr Boehm also submitted that the father’s refusal to participate in the production of the Family Report was evidence of the father’s poor parental attitude and behaviour.
Mr Boehm suggested that the mother would not be able to afford the flights for the child as the mother is in receipt of a NewStart pension.
I then noted to Mr Boehm that I was required to take into account the reason for the orders made by the County Court of Tarascon per s 111CW of the Act. I also noted that it was the mother who had initially proposed the current arrangement for the child’s time with the father. Mr Boehm responded that, whilst the mother thought the order was appropriate at the time, the circumstances of the 2007 visit to France and the mother’s financial circumstances rendered the current order no longer workable.
Consideration
Are the best interests of the child the paramount consideration in the case at hand?
Both parties relied upon the decision of Bennett J in Peddar as authority for the proposition that the best interests of the child are the paramount consideration when determining what orders, if any, should be made under Regulation 25A of the Child Abduction Regulations.
Neither party referred to the recent decision of Kent J in Secretary of the Attorney-General’s Department & McDonald [2013] FamCA 8 (“McDonald”), a judgment that diverges to some degree from the Peddar decision. His Honour states in the McDonald decision:
[77]As the Preamble to the Convention states, the interests of children are of paramount importance in matters relating to their custody. It is trite that applications for return orders are about forum and the recognition by Contracting States that consistent with best interests of children to negate the potentially harmful effects of wrongful removal is the prioritisation of return orders being made so that courts of the original forum may embark on the investigation and determination of custody issues. Notably even when a return order is made it is not an order to return the child to a parent, but for the child to be returned to a country.
[78]Accepting that best interests lies at the heart of the Convention, clearly when it comes to an application for access, best interests of the subject or individual child, as opposed to children as a group, assumes prominence.
[79]However, whether it is legitimate as a general proposition to conclude that the paramountcy principle applies in all access applications under the Regulations is, to my mind, open to question given the varying circumstances in which such applications may arise.
[80]The language of regulation 24 “establish, organise or secure…” reflects possible permeations in the kinds of applications or backgrounds to them. Regulation 29 (the evidentiary provision) specifically refers to regulation 25 and, for example, enables by sub-paragraph (5) the Court to take judicial notice of a decision of a Convention country.
[81]An application of this type might have a temporal connection with a recent decision of a judicial or administrative authority of a Convention country applying the principle of best interests or the child’s welfare in reaching that decision. Disputed issues of fact going to the heart of best interest considerations may have been resolved in that decision-making process including, for example, by reference to expert evidence.
[82]In those circumstances it may be contrary to, or inconsistent with, the objects and purposes of the Convention, and principles of comity between Contracting States, for a Court here determining an application for access to apply the paramountcy principle as opposed to an approach involving the consideration of best interests as a relevant consideration.
[83]Whilst as already noted, regulation 25A does not prescribe the considerations to be taken into account that does not mean the discretion is completely at large. In referring to the similarly independent discretion under reg 16(3)(c) the majority of the High Court in De L (supra), citing with approval Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492 at 505] said at p 661:-
‘As earlier indicated, the so-called ‘paramountcy principle’ is not applicable in proceedings under the regulations. However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has obtained the age and degree of maturity spoken of in reg 16(3)(c), it remains to the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except so far as the subject matter and the scope and purpose of the [regulations]’ enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion’.
[84]In my view the exercise of discretion in a given case, and the place of best interests or the paramountcy principle in the context of relevant considerations is informed by the circumstances of the case.
[85]It may be that where an application, as here, is to “establish” the effective exercise of rights of access not derived from any judicial or administrative decision previously made that it will be legitimate to elevate best interests as the paramount consideration.
I agree with the remarks of Kent J in the McDonald case that the best interests of the child may not always be the paramount consideration in every application for access pursuant to the Child Abduction Convention.
Had the decision of the County Court of Tarascon been handed down last year, as opposed to nearly eight years ago, the considerations of comity involved in respecting a decision of another convention country concerning the best interests of the child may have relegated the best interests of the child to the status of a “relevant consideration” as opposed to the “paramount consideration.”
However, in the case at hand, I find that the decision of the County Court of Tarascon dated 28 June 2005 lacks the “temporal connection” as described by Kent J that would render it “contrary to, or inconsistent with, the objects and purposes of the [Child Abduction] Convention, and principles of comity between Contracting States, for a Court here determining an application for access to apply the paramountcy principle as opposed to an approach involving the consideration of best interests as a relevant consideration.”
The best interests of the child are, in this case, the paramount consideration. The order of the County Court of Tarascon is a relevant consideration but one that is ultimately subservient to the paramount consideration of the best interests of the child.
Determining the best interests of the child
The Act provides a framework for determining the “best interests” of a child. This framework consists of two “primary considerations” and a multitude of “additional considerations.”
The primary considerations – s 60CC(2)–(2A) of the Act
The first primary consideration is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
In most cases, it is in a child’s best interests to have a meaningful relationship with both parents. However, the application of the second primary consideration and the additional considerations lead me to conclude that this is not the case in this matter.
The secondary primary consideration is “the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence” (s 60CC(2)(b) of the Act). The secondary primary consideration is to be given “greater weight” than the first primary consideration (s 60CC(2A) of the Act).
Both the child and her brother are described in the Family Report as having “traumatic memories” and “malevolent recollections” of the time they have spent with their father. The child, reflecting on her time with the father in 2007, recalls in the Family Report at paragraph [28]:
We were imprisoned in his apartment … not allowed to contact mum ... we always have the same food … spaghetti and a jar of sauce ... once I saw him cooking rice and making something different for himself but for us it was always pasta .. I never could understand why he would do that.
Furthermore, the report states at paragraph [43] that the report writer has “grave concerns for [the child’s] physical and emotional safety” should she be ordered to spend time with the father. During examination at the hearing, the report writer stated that these “grave concerns” she had may manifest themselves in “emotional issues” within the child if she is forced to confront the “trigger” of her trauma, that being her father. The risk of psychological harm was said to be magnified because the child would be travelling alone for any future time in France with her father given that her brother is now an adult.
As the secondary primary consideration is to be given “greater weight” than the first primary consideration, I find that the primary considerations lead me to conclude that it would not be in the child’s best interest to spend time with the father.
The additional considerations – s 60CC(3)–(5) of the Act
The child’s views are an additional consideration relevant to determining the best interests of said child (s 60CC(3)(a)). I was informed of the child’s views in the Family Report.
The views of the child are clear. At paragraph [31] of the Family Report, the child is quoted as saying:
I just don’t want him [the father] to be a part of my life … I would prefer no contact at all … I don’t agree to give him a post office address … I feel I don’t need him in my life … I’ve been most happiest without him.
The report writer confirmed that, in her professional opinion, the child’s views were not influenced by her mother or older brother. Furthermore, the report writer concluded that the child’s “reported fear of her father seemed genuine, as did her wish to have no further contact with him, even by way of a post office box.”
I am satisfied to the requisite standard that the child’s views are that she does not want to spend time with the father, nor does she want to communicate with him in any manner.
100The child will be 16 early next year. She has expressed strong views.
101The nature of the child’s relationship with each of their parents and any other persons is also a relevant additional consideration (s 60CC (3) (b) of the Act). I find that the child shares a strong bond with her mother and brother. As noted in the Family Report, “brother and sister seemed to share a strong sibling bond”, and “all three [including the mother] appeared to relate to one another with warmth, respect and affection consistent with secure attachments.”
102Conversely, the child seems to deny she has a relationship at all with her father. The mother has quoted her saying “Why he make problem for me … he not my father.” Furthermore, the child is quoted as saying the father “never showed us any love” and that the child “was unable to recall a single positive memory of her father.”
103I am satisfied that the mother has demonstrated an appropriate level of willingness to facilitate the child’s relationship with the father, with her noting in her affidavit filed 21 August 2012 that she “encouraged and sometimes forced the children to contact the father” via telephone until it was clear that the father was not interested in speaking with his children.
104I have concerns about the capacity of the father to provide for the needs of the child, including her emotional and intellectual needs, given the children’s recount of the time they spent with him in 2007 as contained in the Family Report (s 60CC(3)(f) of the Act).
105The list of additional considerations provided in the Act is not exhaustive, with s 60CC(3)(m) of the Act requiring me to consider “any other fact or circumstance that the court thinks is relevant.”
106I consider the findings of the County Court of Tarascon from June 2005 under this heading and in accordance with the dicta of Butler-Sloss LJ in Re G (Supra).
107I have read the decision of County Court of Tarascon dated 28 June 2005. I have considered the reasons provided therein. Many of the comments made by Magistrate in Charge of Family Affairs Marc Juston continue to be applicable, such as the fact that “it is obvious that [the father] refuses any constructive dialogue with the mother about the children.” The ultimate finding made by the Magistrate was:
Consequently, in the interests of the children, it is fitting to fix the child’s main residence with the mother and permit her to leave France to go and live in Australia with the children.
In order to maintain a relationship of father/children, it is fitting to fix residence for the children with their father during a period of one month and a half during their main school holidays.
108The remaining factors in s 60CC are not significant in this matter.
109For the reasons set out above it is no longer in the best interests of the child to spend time with her father.
Conclusion
110I dismiss the Form 4 Initiating Application filed by the State Central Authority: Commissioner of Police, South Australia on 14 May 2012 and decline to make any orders under Regulation 25A of the Child Abduction Convention.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 May 2013.
Associate:
Date: 24 May 2013
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